                                           NO.    92-197
                         IN THE SUPREME COURT OF THE STATE OF MONTANA
                                                 1992

STATE OF MONTANA,
                         Plaintiff and Respondent,
     -vs-
MYRON CHRISTIAN LARSON,
                         Defendant and Appellant.




APPEAL FROM:                  District Court of the First Judicial District,
                              In and for the County of Lewis and Clark,
                              The Honorable Thomas Honzel, Judge presiding.
COUNSEL OF RECORD:
                         For Appellant:
                              William F. Hooks, Appellate Defender Office, Helena,
                              Montana
                         For Respondent:
                              Marc Racicot, Attorney General, Helena, Montana:
                              George Schunk, Asst. Attorney General, Helena,
                              Montana; Mike McGrath, Lewis & Clark County
                              Attorney, Helena, Montana


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                   gi                       Submitted on Briefs: October 8 1992
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                   .$.                                  ~ecided: December 1 5 , 1992
Justice R. C. McDonough delivered the Opinion of the Court.

     This is an appeal from a judgment of the First Judicial
District Court, Lewis and Clark County, convicting Larson of
negligent endangerment in violation of 5 45-5-208, MCA.           Affirmed.
     The issues on appeal are:
1.   Whether a trial judge may allow the prosecution to compare the
     blood alcohol level of a defendant in a non-DUI case with the
     blood    alcohol   level   that       the   scientific community   has
     determined will      impair a person's          ability   to drive an
     automobile.
2.   Whether the jury heard sufficient evidence to find that Larson
     acted negligently.
     On July 21, 1991, five-year old Brenda Perry suffered fatal
injuries when a horse she and Myron Larson were riding reared and
fell backward, crushing Brenda.            She died a short time later of
internal bleeding.
     The accident occurred during a barbecue at a rural home near
Helena.    Larson attended the barbecue with his son, his girlfriend
Kate Perry, and Kate's children.                 Brenda was one of Kate's
children.
     Larson had consumed several alcoholic beverages that day. He
testified that he drank four sixteen-ounce cans of beer and two
shots of whiskey.       The coroner, however, testified that Larson
admitted to drinking six or seven cans of beer and two shots of
whiskey.
     Larson saw the hostess, Heidi St. Germaine, riding a horse
                                       2
named Taz and asked St. Germaine if he could ride the animal.
Before St. Germaine allowed Larson to ride Taz, she gave him
instructions on handling the horse.   She told Larson that Taz was
"inexperienced" and "hot-blooded.I1 She also told him that Taz did
not like to have her mouth tugged by the reins.
     Larson rode the horse for a while, then returned to talk to
st. Germaine.    Larson asked her if his son could go for a ride.
St. Germaine testified that she told Larson she did not want
children riding the horse.    She also testified that she told him
the horse did not like anything, even saddle bags, behind the
saddle.    Larson, on the other hand, testified that St. Germaine
told him she did not want children on the horse alone.     He also
testified that she said nothing about riding double.
     Moments later, Brenda said that she wanted a ride.       Kate
Perry, Brenda's mother, lifted Brenda onto the horse.   She grabbed
Larson around the waist and gripped the horse's flanks with her
legs. The horse began to "crow-hop," so Larson pulled back on the
reins. The horse reared straight up and fell backward onto Larson
and Brenda.     A bystander rushed Brenda to the hospital, but she
died of internal injuries.
     At the hospital, law enforcement officers requested that
Larson submit to a blood test, because a strong odor of alcoholic
beverage emanated from his breath. Larson refused, stating either,
                                                 you see I'm
"It's obvious that I've been drinkingfror, rlCanrt
drunk. "
     After the officers got a search warrant, a lab technician drew
a blood sample from Larson.     By then, over three hours had elapsed
s i n c e t h e accident. Lynn Kurtz, a forensic scientist for the State

Crime Lab, measured Larsonts blood alcohol content at .17 grams of
alcohol per 100 milliliters of blood.      Kurtz estimated that Larson
had a blood alcohol content between - 2 0 and .27 at the time of the
accident.
     At trial, Larson objected to any discussion of the statutory
level of intoxication sufficient for an inference that a D U I
defendant is under the influence of alcohol.         The court sustained
the objection.
     The court, however, permitted Kurtz to compare Larsonts blood
alcohol level with the level that the scientific community has
determined will impair a person's ability to drive a motor vehicle.
Kurtz testified that the scientific community has determined that
a blood alcohol level of .08 grams of alcohol per 100 milliliters

of blood will impair a person's ability to safely operate a motor

vehicle.
     In addition to the physical effects of alcohol, Kurtz
testified concerning the effect of alcohol on a person's reasoning
and judgment.    He said that a person with a blood alcohol level as
low as . O 5 tlwill stupid things.
                   do
     The p r o s e c u t i o n argued that Larson made mistakes i n judgment

due to his alcohol consumption.          In closing, the prosecution
mentioned to the jury that Larson's blood alcohol level at the time
of the accident was three times the level that will impair a
person's ability to drive an automobile.           The prosecution also
argued that a person who is too impaired to drive an automobile
safely is too impaired to ride a horse safely, and certainly is too
impaired to allow a five-year old child on a high-spirited horse
with him.     The prosecution closed by stating:
       [I]tls not a crime to put a child on a horse. That's
       true.    It's not.     It's not a crime to drive an
       automobile. But had Myron Larson been .17, gets in a
       car, runs off the interstate, plows into another car and
       people are killed, we wouldn't have any trouble with
       that. He would be held accountable for his own acts. I
       submit to you this is the same situation. He engaged in
       a course of conduct that created a substantial risk of
       death for this child. He should be held accountable.
       The jury found Larson guilty of negligent endangerment in
violation of 9 45-5-208, MCA.    This appeal follows.


       May a trial judge allow the prosecution to compare the blood
alcohol level of a defendant in a non-DUI case with the blood
alcohol level that the scientific community has determined will
impair a person's ability to drive an automobile?
       We have consistently held that a trial judge has great
discretion in ruling on the admissibility of evidence.       State v.
Oman    (1985), 218 Mont. 260, 263, 707 P.2d       1117, 1119 (citing
cases).     This Court will overturn a trial judgersdetermination of
the admissibility of evidence only for an abuse of discretion.

-,
Oman 707 P.2d at 1119
       Larson contends that "blood alcohol standards, which establish
whether a person is too impaired to drive safely, apply only in
cases involving a charge of driving under the influence."          He
reasons that a comparison between the blood alcohol level which
impairs one's ability to drive, and Larsonlsblood alcohol level on
the day of the accident is actually a "DUI-type presumptionI1 in
disguise.
       To support his contention, Larson relies on cases concerning
a statute that, at one time, created a presumption of intoxication
if a DUI defendant had a certain blood alcohol level.           See
generally 5 61-8-401, MCA: State v. Morgan (1982), 198 Mont. 391,
646 P.2d 1177; State v. Leverett (lggO), 245 Mont. 124, 799 P.2d
119.    In Leverett, this Court held it was unconstitutional, thus
reversible error, to give a jury instruction that raised a
mandatory rebuttable presumption of an element essential to a
criminal charge. 799 P.2d at 124.    In Moraan, we noted that after
a court has held that the jury would not be instructed on the
presumed level of intoxication, a prosecutor should not refer to
such a presumption.      In that case, despite a pre-trial order
forbidding it, the prosecutor repeatedly referred to the blood
alcohol level that gave rise to a presumption of intoxication.
Morqan, 646 P.2d at 1181-82.
       Neither case applies to the case at hand.   Montana's statute
no longer mandates a presumption that a DUI defendant with a
certain blood alcohol content is intoxicated.      Rather, it allows
the trier of fact to infer that a person with a certain blood
alcohol level is under the influence of alcohol for purposes of the
DUI law.     See 5 61-8-401(4) (c), MCA.   The prosecution did not
mention the contents of the statute after the court sustained
Larson's objection to any mention of the statute.         Therefore,
Larson's contention that a comparison of a non-DUI defendant's
blood alcohol level with the level which will impair a driver is
actually a lfDUI-type pres~mption~~ unfounded.
                                 is
    Larson also contends that the level of blood alcohol which
will impair a person's ability to drive is irrelevant to his
conduct relative to a high-spirited young horse.     On the contrary,
"[rlelvant evidence means evidence having any tendency to make the
existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be
without the evidence."     Rule 401, M.R.Evid.

    The test of relevance is whether an item of evidence will
    have any value, as determined by logic and experience, in
    proving the proposition for which it is offered. The
    standard used to measure this acceptable probative value
    is 'any tendency t o make t h e existence of any fact  ...
    more probable or less probable than it would be without
    the evidence'.
State v. Fitzpatrick (l98O), 186 Mont. 187, 207, 606 P.2d 1343,
1354 (quoting M.R.Evid. Commission Comments).

     At Larsonfs trial, the prosecution offered his blood alcohol
level to show that alcohol had impaired his reactions and judgment

when he chose to ride double on a high-spirited horse with a young
girl.     Larsonfs blood alcohol level on the day of the accident is
relevant.
        The comparison of Larson's blood alcohol level with that which
the scientific community has determined will impair a person's
ability to drive a motor vehicle is also relevant. The comparison
aided the jury in evaluating Larson's level of intoxication.       It
allowed the jurors to apply their experience and logic to determine
whether Larsonls level of intoxication clouded his judgment and
impaired his reactions, and its probative value outweighs any
prejudice to the defendant.   We hold that the court did not abuse
its discretion in admitting the comparison.


     Did the jury hear sufficient evidence to find that Larson
acted negligently?
     When reviewing whether evidence was sufficient to support a
criminal conviction, this Court views the facts in a light most
favorable to the prosecution.     The standard of review is whether
"any rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt."    State v. McLain (1991),
249 Mont. 242, 246, 815 P.2d      147, 150; See also, Jackson v.
Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560.
     The jury convicted Larson of negligent endangerment.      This
required a finding that Larson negligently engaged in conduct which
created a substantial risk of death or serious bodily injury to
another.   See 3 45-5-208, MCA.    Larson contends that his conduct
did not amount to criminal negligence.
     Criminal negligence is defined as follows:
     [ A ] person acts negligently with respect to a result or
     to a circumstance described by a statute defining an
     offense  .   ,  .when he disregards a risk of which he
     should be aware that the result will occur or that the
     circumstance exists. The risk must be of such 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. l'Gross
     deviation" means a deviation that is considerably greater
     than lack of ordinary care.
Section 45-2-101(37), MCA.
    At trial, the jury heard evidence that a blood alcohol level
of .05 begins to affect a person's reasoning and judgment.     The
scientific community has determined that a blood alcohol level of
.08 will affect a person's reactions and judgment to the point of

impairing the person's ability to safely operate a motor vehicle.
     Shortly before the accident Larson had consumed at least four
cans of beer and two shots of whiskey.   His blood alcohol level at
the time of the accident was at least .17, and likely much higher.
     In that condition, Larson mounted a horse described to him by
the owner as ohot-bloodedw and "inexperienced."   The owner of the
horse had warned him not to tug back on the reins and not to give
rides to children.    Yet, Larson allowed a five-year old child on
the horse with him.    When the horse began to jump, Larson reined
the horse back.   The animal fell over backward, fatally crushing
the child.
     Upon these facts, a rational jury could find that Larson's
conduct amounted to a gross deviation from the ordinary care that
a reasonable person would observe in a similar situation. We hold
that the jury was justified in finding beyond a reasonable doubt
that Larson acted negligently.   Affirmed.
                                  December 15, 1992

                            CERTIFICATE O F SERVICE

I hereby certify that the following order was sent by United States mail, prepaid, to the
following named:


William F. Hooks, Appellate Defender
Appellate Defender
Capitol Station
Helena, MT 59620


HON. MARC RACICOT, Attorney General
George Schunk, Assistant
Justice Bldg.
Helena, MT 59620


Michael McGrath
Lewis & Clark County Attorney
228 Broadway
Helena, MT 59623




ED SMITH
CLERK O F THE SUPREME COURT
STATE OF-MONTAPjA
