                                                                                         September 10 2014


                                           DA 13-0527

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                         2014 MT 244N



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

DANIEL MAHONEY,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eighth Judicial District,
                        In and For the County of Cascade, Cause No. DC 11-498
                        Honorable Kenneth R. Neill, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Wade Zolynski, Chief Appellate Defender; Gregory Hood, Assistant
Appellate
                        Defender; Helena, Montana

                For Appellee:

                        Timothy C. Fox, Montana Attorney General; Katie F. Schulz, Assistant
                        Attorney General; Helena, Montana

                        John Parker, Cascade County Attorney; Amanda Lofink, Deputy County
                        Attorney; Great Falls, Montana



                                                    Submitted on Briefs: August 13, 2014
                                                               Decided: September 10, 2014

Filed:

                        __________________________________________
                                          Clerk
Justice Michael E Wheat delivered the Opinion of the Court.

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

Rules, this case is decided by memorandum 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        Daniel Mahoney (Mahoney) appeals from the jury verdict finding him guilty of two

counts of criminal endangerment and one count of driving under the influence (DUI). We

affirm.

¶3        At around 8:00 p.m. on December 9, 2011, Linda Sangray (Linda) and James Richard

Sangray (Richard) were backing their truck and a trailer carrying snowmobiles into the

driveway of their cabin, located just off the highway. Two other individuals were helping

them. Mahoney, returning from Showdown Ski Resort, struck the truck, injuring Linda and

Richard and narrowly missing the spotters. The stretch of roadway approaching the Sangray

cabin from Showdown was straight with a mile of clear visibility, and all of the truck lights

were illuminated at the time of the impact. Linda testified that a previous vehicle had slowed

to go around the truck. Accident scene investigation revealed no evidence that Mahoney

applied the brakes.

¶4        Linda, Richard, and Mahoney were transported to the hospital. At around 10:00 p.m.,

Highway Patrol Trooper Danny Sons (Sons) spoke with Mahoney. Sons observed that

Mahoney’s eyes were glazed, watery, and bloodshot. He could smell the odor of an

alcoholic beverage coming from Mahoney’s breath, and Mahoney spoke slowly and

deliberately. Mahoney “appeared to be in a stupor.” Mahoney admitted to having had “a

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couple” beers at Showdown. Mahoney’s blood was drawn pursuant to a warrant; his blood

alcohol concentration at approximately 11:10 p.m., about three hours after the accident

occurred, was .22, almost three times the legal limit.

¶5     The State charged Mahoney by amended information with felony DUI and four

counts of felony criminal endangerment, related to this incident. Before trial, the State

submitted its proposed jury instructions.        Among these was an instruction defining

knowingly as follows: “A person acts knowingly when the person is aware of his or her

conduct.” Mahoney submitted one jury instruction, based on a statute which requires a

vehicle entering a roadway to yield the right-of-way to approaching traffic. At the end of the

first day of trial, the District Court settled jury instructions with the parties. Mahoney raised

the issue of which “knowingly” definition applied to the offense of criminal endangerment,

but did not object to the jury instruction defining “knowingly.” Mahoney’s theory of defense

was that Richard’s actions, not his, caused the accident. Following a two-day trial, the jury

found Mahoney guilty of DUI and two counts of criminal endangerment. The District Court

sentenced Mahoney to the Department of Corrections for a total of six years one month, with

five years suspended.

¶6     We review jury instructions to determine whether the instructions, taken as a whole,

fully and fairly instruct the jury as to the applicable law and whether the district court abused

its discretion in instructing the jury. State v. Gerstner, 2009 MT 303, ¶ 15, 353 Mont. 86,

219 P.3d 866. Claims of ineffective assistance of counsel (IAC) are mixed questions of fact

and law that this Court reviews de novo. State v. Birthmark, 2013 MT 86, ¶ 10, 369 Mont.

413, 300 P.3d 1140.

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¶7     On appeal, Mahoney contends that this Court should exercise plain error review to

consider his argument that the jury instruction set forth the wrong definition of “knowingly”

for the offense of criminal endangerment. He also contends that his counsel was ineffective

for failing to object to the offending jury instruction at trial.

¶8     “A party may not assign as error any portion of the instructions or omission from the

instructions unless an objection was made specifically stating the matter objected to, and the

grounds for the objection, at the settlement of instructions.” Section 46-16-410(3), MCA.

When a defendant raises the plain error doctrine to request our review of issues that were not

objected to at the district court level, our review is discretionary. State v. Gray, 2004 MT

347, ¶ 13, 324 Mont. 334, 102 P.3d 1255. We will review only claimed errors that implicate

a defendant’s fundamental rights, where failing to review the error at issue may result in a

manifest miscarriage of justice, leave unsettled the question of the fundamental fairness of

the trial or proceedings, or compromise the integrity of the judicial process. State v. Daniels,

2003 MT 247, ¶ 20, 317 Mont. 331, 77 P.3d 224.

¶9     We decline to review Mahoney’s challenge to the jury instructions under the plain

error doctrine. Regardless of whether the jury was provided with the correct definition of

“knowingly” as applied to the result-based offense of criminal endangerment, see State v.

Lambert, 280 Mont. 231, 236-37, 929 P.2d 846, 849-50 (1996), we are not persuaded that

this error resulted in a manifest miscarriage of justice, left unsettled the question of the

fundamental fairness of the trial or proceedings, or compromised the integrity of the judicial

process. Mahoney’s theory of defense was an attempt to assign blame to Richard for the

accident. If the jury had believed Mahoney’s defense, the mental state with which he acted

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would not have mattered at all. Since Mahoney did not emphasize the mental state element

in his defense, we are not persuaded plain error review is necessary here.

¶10    Because the erroneous instruction did not prejudice the defense, moreover, Mahoney

cannot satisfy the two-prong test for IAC set forth in Strickland v. Washington, 466 U.S. 668,

104 S. Ct. 2052 (1984). Under that test, the defendant must demonstrate both (1) that

counsel’s performance was deficient, and (2) that counsel’s deficient performance prejudiced

the defendant. McGarvey v. State, 2014 MT 189, ¶ 24, ___ Mont. ___ , ___ P.3d ___ . To

satisfy Strickland’s second prong, the defendant must show that, but for counsel’s errors, a

reasonable probability exists that the result of the proceeding would have been different.

State v. Miner, 2012 MT 20, ¶ 12, 364 Mont. 1, 271 P.3d 56. We will only review IAC

claims on direct appeal where, as here, the record provides an explanation for counsel’s

allegedly deficient conduct. State v. Kougl, 2004 MT 243, ¶ 14, 323 Mont. 6, 97 P.3d 1095.

¶11    The trial transcripts reveal that Mahoney’s counsel recognized the potential for error

in the definition of knowingly, but was not sure which definition should apply to criminal

endangerment. Even if Mahoney’s counsel failed to submit a jury instruction based on the

correct definition of knowingly, his error did not prejudice the defense. The prosecution

presented an array of evidence from which a jury could have concluded that Mahoney acted

knowingly, even under the result-based definition: Mahoney’s blood alcohol content was

almost three times the legal limit three hours after the accident occurred, he made no attempt

to brake, and a previous vehicle had slowed to go around the truck. There is no reasonable

probability the outcome of the proceeding would have been different, but for Mahoney’s

counsel’s error.

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¶12    We have determined to decide this case pursuant to Section I, Paragraph 3(d) of our

Internal Operating Rules, which provides for noncitable memorandum opinions. The issues

in this case are ones of judicial discretion and there clearly was not an abuse of discretion.

¶13    Affirmed.


                                                  /S/ MICHAEL E WHEAT

We Concur:

/S/ MIKE McGRATH
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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