                                                                                               02/20/2018


                                          DA 16-0504
                                                                                           Case Number: DA 16-0504

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                          2018 MT 27



STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

DARA STARR IVERSON,

               Defendant and Appellant.


APPEAL FROM:           District Court of the Eleventh Judicial District,
                       In and For the County of Flathead, Cause No. DC 16-020D
                       Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate
                       Defender; Helena, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Tammy A. Hinderman,
                       Assistant Attorney General; Helena, Montana

                       Edward J. Corrigan, Flathead County Attorney, Alison E. Howard, Deputy
                       County Attorney; Kalispell, Montana



                                                   Submitted on Briefs: January 31, 2018

                                                              Decided: February 20, 2018


Filed:

                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1     Dara Starr Iverson (Iverson) appeals a jury verdict in the Eleventh Judicial District

Court, Flathead County, convicting her of operating a noncommercial vehicle with alcohol

concentration of 0.08 or more (DUI per se), a felony. We affirm in part and reverse in part.

¶2     We restate the issues on appeal as follows:

       1. Whether Iverson’s right to due process was violated by a jury instruction that
       instructed the jurors, when choosing between two competing interpretations
       of circumstantial evidence—one that supports guilt and one that supports
       innocence—to choose whichever interpretation was the “most reasonable?”

       2. Did the District Court err in imposing cost of legal counsel on Iverson?

       3. Did the District Court err in incorporating additional costs in the written
       judgment that were stricken in the oral pronouncement?

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     On January 12, 2016, Iverson was charged with felony driving under the influence,

in violation of § 61-8-401, MCA. On March 18, 2016, the Information was amended to

add an alternative offense of felony DUI per se in violation of § 61-8-406, MCA.

Following a jury trial, Iverson was acquitted of felony DUI and convicted of felony DUI

per se.    Over Iverson’s objection, the District Court instructed the jury, “When

circumstantial evidence is susceptible to two interpretations, one that supports guilt and the

other that supports innocence, the jury determines which is most reasonable” and denied

Iverson’s proposed circumstantial evidence instruction.

¶4     On January 9, 2016, Iverson was stopped for speeding. Upon interaction with

Iverson, Officer Wardensky noted her speech to be slightly slurred and he observed her
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eyes to be red and glassy. He also noted she smelled of alcohol. Iverson admitted to

drinking alcohol and smoking medical marijuana. Iverson admitted going to the Silver

Bullet Bar for dinner and consuming a couple alcoholic drinks. After leaving that bar,

Iverson also admitted to stopping at the Eagles for an additional alcoholic drink. She was

on her way home from the Eagles when she was stopped. Officer Wardensky arrested

Iverson for the offense of DUI. At the detention center, Iverson exhibited indications of

impairment on standard field sobriety tests including raising her arms and losing her

balance on the walk-and-turn test. Iverson refused to provide a breath sample. As such,

Officer Wardensky obtained a search warrant for a blood draw. Approximately two hours

after being stopped, Iverson’s blood alcohol content (BAC) registered 0.107 plus or minus

0.008 grams of ethanol per 100 milliliters of whole blood.

¶5     Montana State Crime Lab forensic toxicologist Douglas Lancon testified regarding

his testing of Iverson’s blood sample explaining his finding of 0.107 reflected Iverson’s

BAC at the time of the blood draw. He explained initial effects of alcohol include

impairment of judgment and euphoria and later effects include slurred speech and

disruption of fine and gross motor skills which impair the ability to successfully complete

field sobriety tests such as the walk-and-turn and one-leg stand. He explained an individual

can begin to exhibit the effects of alcohol within 20 minutes or less of consumption.

Further, depending on how much a person has already consumed, consumption of new

alcohol can affect a person within minutes. Lancon described the uncertainty in attempting

to calculate a person’s BAC at a time prior to her blood draw, noting a variety of impacting
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factors such as the person’s weight, whether she had eaten, when she consumed alcohol,

what alcohol she consumed and how long had she consumed alcohol. Lancon testified the

absorption rate of alcohol varies considerably between 20 minutes and an hour and a half

after consumption and that the body processes alcohol over three phases, the “absorption”

phase, the “peak” phase, and the “elimination” phase.

¶6     Iverson contends there were two reasonable interpretations of the BAC evidence

presented at trial: 1) Iverson’s body was eliminating alcohol at the time she was driving

such that her BAC was above 0.08 at the time she was driving or, 2) Iverson’s body was

absorbing alcohol at the time she was driving such that her BAC was below 0.08 at the

time she was driving.

¶7     Iverson asserts the District Court erred in giving the circumstantial

evidence instruction because it violated her due process right “by authorizing jurors to

find guilt even where they believed the circumstantial evidence also supported a

reasonable–plausible–interpretation supportive of innocence.” Iverson further asserts the

given circumstantial evidence instruction altered the standard of proof the jury must use

when evaluating circumstantial evidence.

¶8     The State contends the District Court did not err in giving the pattern “most

reasonable” instruction. The State asserts the instructions “as a whole fully and fairly

instructed the jury regarding the State’s burden of proof and the presumption of innocence,

and there is no reasonable likelihood that the jury understood the instruction to allow it to

convict Iverson of DUI per se on anything less than proof beyond a reasonable doubt.”
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¶9     Iverson also contends there is a discrepancy between the Court’s oral

pronouncement and its written judgment in that Condition 13(a)(i) requires payment of an

additional $800 in public defender fees which were stricken orally at sentencing. Iverson

alternatively contends the District Court erred by imposing any costs for counsel after its

own determination at sentencing that Iverson did not have the current financial ability to

pay a fine or other fees contained in paragraph 13 of the Presentence-Investigation (PSI)

report and would not have the financial ability to do so within a reasonable time. The State

concurs noting, “the evidence in the record indicates she does not have the present or future

ability to pay these costs.” The State requests “remand with instructions to strike the

portion of Condition 13 of the Judgment ordering Iverson to pay the costs of defense

counsel.”

                               STANDARD OF REVIEW
¶10    “We review for an abuse of discretion whether the district court correctly instructed

the jury.” Peterson v. St. Paul Fire & Marine Ins. Co., 2010 MT 187, ¶ 22, 357 Mont. 293,

239 P.3d 904. “[W]hile a district court has broad discretion to formulate jury instructions,

that discretion is limited by the overriding principle that jury instructions must fully and

fairly instruct the jury regarding the applicable law.” Peterson, ¶ 22 (quoting Tarlton v.

Kaufman, 2008 MT 462, ¶ 19, 348 Mont. 178, 199 P.3d 263) (internal quotations omitted).

“We review the instructions as a whole to determine whether they fully and fairly instruct

the jury on the applicable law.” State v Sanchez, 2017 MT 192, ¶ 7, 388 Mont. 262, 399

P.3d 886 (citing State v. Kaarma, 2017 MT 24, ¶ 7, 386 Mont. 243, 390, P.3d 609). “[T]he

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party assigning error to a district court’s instruction must show prejudice in order to prevail,

and prejudice will not be found if the jury instructions in their entirety state the applicable

law of the case.” Tarlton, ¶ 19 (quoting Murphy Homes, Inc. v. Muller, 2007 MT 140,

¶ 74, 337 Mont. 411, 162 P.3d 106).

¶11    Jury instructions that relieve the State of its burden to prove every element of the

charged offense beyond a reasonable doubt violate the defendant’s due process rights.

State v. Miller, 2008 MT 106, ¶ 11, 342 Mont. 355, 181 P.3d 625 (citing Carella v.

California, 491 U.S. 263, 265, 109 S. Ct. 2419, 2420 (1989) (per curiam)). The issue of

whether a defendant’s due process rights were violated is a question of law; we review the

district court’s conclusion to determine whether its interpretation of the law was correct.

Miller, ¶ 11.

                                       DISCUSSION

¶12 1. Whether Iverson’s right to due process was violated by a jury instruction that
instructed the jurors, when choosing between two competing interpretations of
circumstantial evidence–one that supports guilt and one that supports innocence‒to choose
whichever interpretation was the “most reasonable?”

¶13    Iverson properly preserved her objection to this instruction. Iverson asserts the

instruction relieved the State of its burden to prove her guilt beyond a reasonable doubt.

Iverson argues her right to due process was violated by the instruction as it allowed the

jury to convict her based on evidence that was reasonable, rather than requiring proof

beyond a reasonable doubt. The State contends the jury instructions, as a whole, fully and

fairly instructed the jury on all relevant points of law and the instruction at issue, when read

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in totality with the other instructions, did not shift the State’s burden to prove her guilty

beyond a reasonable doubt. The State also contends the case against Iverson was not based

primarily on circumstantial evidence, but was based on direct evidence as testified to by

Officer Wardensky—he observed Iverson speeding in her vehicle, he observed Iverson in

the driver’s seat with no one else in the vehicle, he observed Iverson smelled of alcohol,

he observed Iverson’s eyes to be red and glassy, he watched Iverson demonstrate clues of

impairment when performing field sobriety tests, Iverson admitted to him she had

consumed alcohol at two different bars before being stopped, and as the evening

progressed, he observed Iverson’s speech became clearer and her comprehension level

increased.

¶14    We first consider whether the instructions on a whole fully and fairly instructed the

jury. Sanchez, ¶ 7. The District Court provided jurors with twenty-four instructions. The

District Court instructed the fact that charges were brought against Iverson could not be

taken “as any indication, evidence or proof that the Defendant is guilty of any offense.”

The Court clearly instructed on the burden of proof:

       The State of Montana has the burden of proving the guilt of the Defendant
       beyond a reasonable doubt. Proof beyond a reasonable doubt is proof of such
       a convincing character that a reasonable person would rely and act upon it in
       the most important of his or her own affairs. Beyond a reasonable doubt does
       not mean beyond any doubt or beyond a shadow of a doubt. The Defendant
       is presumed to be innocent of the charge against [her]. This presumption
       remains with [her] throughout every stage of the trial and during your
       deliberations on the verdict. It is not overcome unless from all the evidence
       in the case you are convinced beyond a reasonable doubt that the Defendant
       is guilty.

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¶15       The District Court instructed as to Count One that a “person commits the offense of

driving under the influence of alcohol and/or drugs if, while under the influence of alcohol

and/or drugs, he or she drives or is in actual physical control of a vehicle upon the ways of

this state open to the public.” The District Court specifically instructed, “[i]f you find from

your consideration of the evidence that all of these elements have been proved beyond a

reasonable doubt, then you should find the Defendant guilty. If, on the other hand, you

find from your consideration of the evidence that any of these elements have not been

proved beyond a reasonable doubt then you should find the Defendant not guilty.”

¶16       The District Court instructed Count Two was charged in the alternative to Count

One such that Iverson could not be convicted of both offenses. Again, the District Court

instructed the jury as to the specific elements of the offense of operating a noncommercial

vehicle with an alcohol concentration of 0.08 or more and again reiterated that if the

elements were not proved beyond a reasonable doubt, the jury should find Iverson not

guilty.

¶17       The District Court further instructed:

          A positive blood alcohol test result does not, in itself, prove that the person
          was under the influence of alcohol at the time the person was driving a
          vehicle upon the ways of the state open to the public. A person may not be
          convicted based upon a positive blood alcohol test alone. The State must
          produce other competent evidence that the person was under the influence of
          alcohol while driving a vehicle upon the ways of this state open to the public.
          You must weigh the evidence presented and decide whether the State has
          proven beyond a reasonable doubt that the Defendant was under the influence
          of alcohol while driving a vehicle upon the ways of this state open to the
          public.

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¶18      The District Court instructed jurors they were the sole judges of the credibility of

witnesses and to determine what weight should be given to the testimony of each witness

upon careful consideration of all the testimony given and the circumstances under which

each witness testified.

¶19      The record is clear the District Court fully and fairly instructed the jury on the

offense of driving under the influence and, in the alternative, operation of a noncommercial

vehicle by a person with an alcohol concentration of 0.08 or more. Each of the individual

offense instructions required the jury to convict only if the State proved each element of

the offense beyond a reasonable doubt.           As in Sanchez, we conclude the disputed

instruction did not relieve the State from its burden to prove guilt beyond a reasonable

doubt:

         Rather, it only provided the jury with some guidance for resolving competing
         interpretations of circumstantial evidence. If the jury found that an
         interpretation of circumstantial evidence was reasonable, it could be
         considered in conjunction with any other evidence to determine whether the
         State met its burden to prove guilt of each offense beyond a reasonable doubt.
         It is the overall weight of the evidence, and not any particular inference from
         the evidence, that determines the jury’s ultimate decision on guilt. The
         existence of alternative interpretations of circumstantial evidence does not
         mean that both interpretations are equally persuasive or weighty. . . . This
         Court has plainly held that a district court may properly give the
         circumstantial evidence instruction which is at issue in this case requiring the
         jury to accept the interpretation of circumstantial evidence they believe is the
         most reasonable.

Sanchez, ¶¶ 16, 17.

¶20      The jury was able to consider the circumstantial evidence in conjunction with the

direct evidence to determine whether the State proved guilt beyond a reasonable doubt.
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Iverson has failed to show the disputed instruction adversely affected her due process

rights. The District Court fully, fairly and properly instructed the jury that the State must

prove guilt beyond a reasonable doubt. In reviewing the instructions in their entirety, it is

clear the disputed instruction did not violate Iverson’s due process rights.

¶21    2. Did the District Court err in imposing costs of legal counsel on Iverson?

¶22    Section 46-8-113(1), MCA, requires the Court to determine whether Iverson should

pay the cost of assigned counsel. Pursuant to § 46-8-113(4), MCA, the Court may not

sentence Iverson to pay costs of counsel unless she is or will be financially able to pay

those costs.

¶23    Iverson is disabled and lives on a limited, fixed income. She receives $733 per

month in Social Security income and $270 per month in food stamp benefits. At the time

of sentencing, she resided in Section 8 housing and owned no assets other than items of

personal property.    In sentencing Iverson, the District Court considered her limited

financial means. The District Court imposed the statutory $5,000 fine and suspended it in

its entirety, stating “I do make the determination that you are not presently able to pay those

fine[s] -- a fine nor will you be in a reasonable amount of time. You’re on a limited income,

it’s a fixed income based on Social Security income.” The District Court further found

Iverson was not financially able to pay fees, costs, and surcharges set forth in paragraph 13

of the PSI report. Given her limited fixed income and disability status, the State concedes

Iverson is not and will not be financially able to pay costs of assigned counsel.


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¶24    The District Court suspended Iverson’s fine and found Iverson financially unable to

now or in the future pay any fine or the fees, costs, and surcharges set forth in paragraph

13 of the PSI report. The District Court has already determined Iverson’s ability to pay

and the record is clear she is financially unable now or in the future to pay the costs of

assigned counsel. As such, this cause is remanded to the District Court to strike the portion

of Condition 13 of the Judgment ordering Iverson to pay any costs of assigned counsel.

Because this issue is dispositive, we need not address Issue 3.

                                      CONCLUSION

¶25    The jury instructions, as a whole, fully and fairly instructed on all relevant points of

law and the instruction at issue, when read in totality with the other instructions, did not

shift the State’s burden to prove Iverson’s guilt beyond a reasonable doubt. Further, the

record is clear Iverson does not have the financial ability now or in the future to pay the

costs of assigned counsel.

¶26    We affirm in part and reverse in part.


                                                   /S/ INGRID GUSTAFSON


We concur:

/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR
/S/ BETH BAKER
/S/ JIM RICE




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