                                          No. 04-248

               IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2005 MT 305


STATE OF MONTANA,

              Plaintiff and Respondent,

         v.

DONALD L. SHEEHAN,

              Defendant and Appellant.




APPEAL FROM:         The District Court of the Seventh Judicial District,
                     In and For the County of Richland, Cause No. DC-2003-14,
                     Honorable Katherine M. Irigoin, Presiding Judge


COUNSEL OF RECORD:

              For Appellant:

                     William F. Hooks, Attorney at Law, Helena, Montana

              For Respondent:

                     Honorable Mike McGrath, Attorney General; Micheal S. Wellenstein,
                     Assistant Attorney General, Helena, Montana

                     Mike Weber, County Attorney, Sidney, Montana



                                                       Submitted on Briefs: January 26, 2005

                                                                  Decided: December 6, 2005


Filed:

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

¶1     Donald Lee Sheehan (“Sheehan”) appeals his conviction in the District Court for the

Seventh Judicial District, Richland County, of driving while under the influence of alcohol

(“DUI”), fourth or subsequent offense, a felony. We affirm.

¶2     Sheehan raises the following issue on appeal:

¶3     Did the District Court err, and thereby violate due process, by denying defendant an

opportunity to present an alternative scenario at trial to explain his apparent state of

intoxication?

                 FACTUAL AND PROCEDURAL BACKGROUND

¶4     During the early morning hours of February 20, 2003, Anna Christenson, Eddie Cook,

and Arnot Schmitt (“Christenson,” “Cook,” and “Schmitt”) were returning to Sidney,

Montana, on Montana Highway 16. About three miles south of town, they came upon

Sheehan, who was jumping up and down on the side of the highway and waving as though

he needed help. Christenson stopped the car, and they got out to offer assistance.

¶5     They noticed that Sheehan appeared to be injured. He had blood on his forehead and

nose, his hands were cut up, and he had some trouble walking. Christenson observed that

Sheehan’s speech was slurred, and when Cook and Schmitt got within about three feet of

Sheehan, they smelled the odor of an alcoholic beverage. The three deduced that Sheehan

had been involved in a car accident or a fight, although Sheehan denied it. He stated that he

had shot himself and needed a ride to the hospital. Although seeing no gunshot wound, the

three took the claim seriously and drove Sheehan to the Sidney Health Center.


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¶6     Upon arriving, Sheehan was admitted to the emergency room, where Holly O’Connor

(“O’Connor” or “Nurse O’Connor”), the charge nurse, observed Sheehan’s injuries, the odor

of alcohol coming from Sheehan and his disorientation, concluding that he was intoxicated.

A physical examination of Sheehan revealed a spot of dried blood about one centimeter

across located in the upper right quadrant of his abdomen, and x-rays confirmed the presence

of a .22 caliber bullet in that area. As a result, he was taken to surgery, although the slug was

not recovered.

¶7     Due to Sheehan’s gunshot wound, Nurse O’Connor contacted law enforcement, and

Officer Arnson and Officer Rosaaen of the Sidney Police Department responded. Upon

arriving, Officer Arnson asked Sheehan where the shooting incident had taken place, and he

initially advised her “that he did not want to get a DUI.” Later, however, he stated that he

had shot himself three or four hours prior to arriving at the Sidney Health Center, and that

after shooting himself, he had gone to the Cattle-ac bar, where he had been drinking and had

gotten into a fight. He informed Officer Arnson that the gun used in the shooting was in the

vehicle he had been driving.

¶8     Officer Rosaaen read Sheehan the Implied Consent Advisory, and Sheehan agreed to

provide a sample of his blood for the purpose of testing his blood alcohol concentration

(“BAC”). His blood was drawn at 2:45 a.m., and an analysis of the sample by the state crime

lab disclosed a BAC of 0.12 grams of alcohol per 100 milliliters of full blood. A second

blood test was administered around that same time by hospital personnel in conjunction with

Sheehan’s surgery, and the results of that test revealed a BAC of 0.18.


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¶9     The vehicle Sheehan had been driving was found the next day, about three miles south

of Sidney. Deputy Gary Hofer of the Richland County Sheriff’s Office, who conducted the

accident investigation, determined that the vehicle had been traveling north on Highway 16

and, upon reaching a curve or bend in the highway, had continued in a straight line across

the southbound lane and off the pavement. In other words, he determined that the driver had

missed the curve and driven straight off the west side of the road. The vehicle then had gone

down a slope and through some brush and trees, finally coming to rest in a slough. Deputy

Hofer was not able to ascertain the speed of the vehicle, but he noted that there were no skid

marks or evidence of braking. On the passenger’s side of the vehicle, he found a .22 caliber

rifle, which contained one spent cartridge. He found no alcoholic beverages in the vehicle

or in the vicinity of the vehicle.

¶10    On March 11, 2003, Sheehan was cited with DUI, in violation of § 61-8-401, MCA

(2003), to which he entered a plea of not guilty. In light of Sheehan’s statements to Officer

Arnson that he had been driving, and because his vehicle had been found just off Highway

16, the primary issue at trial was whether Sheehan had been “under the influence” of alcohol

or drugs at the time he had been driving. Section 61-8-401(1)(a) and (3), MCA (2003).

¶11    On this issue, the defense, which did not call any witnesses, sought to establish that

Sheehan’s conduct on the night of February 20 was attributable to factors other than alcohol.

Counsel elicited testimony from Nurse O’Connor that Sheehan could have gone into shock

after shooting himself. She explained that “[i]f you’ve lost a lot of blood it can alter your

consciousness” and that shock can also affect your mental reasoning. In addition, counsel


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inquired during cross-examination of Deputy Hofer whether it appeared the driver of the

vehicle had intentionally driven off the road, suggesting that Sheehan may have been suicidal

or otherwise mentally impaired.

¶12    Pursuant to this effort, the defense also attempted to elicit testimony from Nurse

O’Connor that Sheehan had received a psychiatric evaluation after leaving the hospital.

Specifically, counsel cross-examined O’Connor as follows:

       Q.     Do you know what happened to Mr. Sheehan after he left ICU?

       A.     He was put out in a room on the floor.

       Q.     Do you know what happened to him after he was released?

       A.     From the hospital?

       Q.     Right.

       A.     No.

The State objected to this last question, leading to an argument in chambers. Although the

transcript reflects that O’Connor answered “No” to defense counsel’s question, this answer

was apparently not noticed by counsel, the prosecutor, or the court.

¶13    In support of his objection, the prosecutor indicated that O’Connor’s answer to

defense counsel’s question “is going to be that [Sheehan] went to a psychiatric facility” for

examination after he was released from the hospital, which would “be suggestive of mental

health problems.” He argued that evidence of whether or not Sheehan suffered from a

mental disease or defect was irrelevant since there is no mental state element in the charge




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of driving while under the influence of alcohol, and that the jury could be confused or misled

by the information.

¶14    In response, defense counsel conceded that state of mind is not an element of the

crime and clarified that he was not pursuing the defense of mental disease or defect, but

offered that “I don’t see any harm by allowing me to question the witness. If she doesn’t

know what happened to Mr. Sheehan, then fine. I think it’s an area that I can ask if she has,

if she has an answer.” On the question of relevance, defense counsel argued that evidence

of Sheehan’s having been sent to a psychiatric facility for evaluation was another possible

explanation for his behavior on the night in question. In other words, Sheehan’s behavior

might have been attributable to symptoms or manifestations of a mental condition, not

alcohol.

¶15    Following argument, the District Court sustained the State’s objection; however, the

court did not state the grounds for its decision. After proceedings resumed in open court,

defense counsel stated that he had no further questions of Nurse O’Connor.

¶16    At the close of the State’s case, Sheehan moved, pursuant to § 46-16-403, MCA, to

dismiss the action “for the reasons that the State has failed to establish a prima facie case

against Mr. Sheehan, and that they have failed to provide evidence that [he] was driving or

in actual physical control of a vehicle while under the influence of alcohol.” The court

denied the motion, explaining that “[t]he jury is allowed to make inferences.”

¶17    The jury rendered a guilty verdict. This appeal followed.




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                                STANDARD OF REVIEW

¶18    Discretionary trial court rulings are ones which “encompass[] the power of choice

among several courses of action, each of which is considered permissible,” such as trial

administration issues, evidentiary rulings, scope of cross-examination, and post-trial motions.

Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 475, 803 P.2d 601, 603-04

(internal quotation marks omitted). Our standard of review of such rulings in a criminal case

is “abuse of discretion.” State v. Beavers, 1999 MT 260, ¶ 20, 296 Mont. 340, ¶ 20, 987

P.2d 371, ¶ 20. See also Porter v. Porter (1970), 155 Mont. 451, 457, 473 P.2d 538, 541.

The burden to demonstrate an abuse of discretion is on the party seeking reversal based on

an unfavorable trial court ruling. See Henrichs v. Todd (1990), 245 Mont. 286, 291, 800

P.2d 710, 713.

                                       DISCUSSION

¶19 Did the District Court err, and thereby violate due process, by denying defendant an
opportunity to present an alternative scenario at trial to explain his apparent state of
intoxication?

¶20    Sheehan’s claim on appeal is that he was denied a meaningful opportunity to present

a complete defense at trial, in violation of his due process rights under Article II, Section 17

of the Montana Constitution and the Sixth and Fourteenth Amendments to the United States

Constitution. His specific challenge, however, is directed solely to the District Court’s ruling

sustaining the State’s objection to Nurse O’Connor’s testimony.

¶21    It is necessary at the outset to clarify the scope of the challenged ruling. Sheehan

asserts that the District Court broadly “denied him the opportunity to present at trial an


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alternative scenario to explain his apparent state of intoxication” and violated his due process

rights. The State counters that Sheehan did not advise the District Court, through an offer

of proof, of the results of his psychiatric examination, his specific mental illness, or of “any

witness, let alone an expert witness, that would testify regarding the nature of his mental

illness and that a mental illness was the cause of Sheehan’s behavior along the highway and

later at the hospital.”

¶22    Sheehan responds that the prosecution itself advised the District Court, during the

argument in chambers which followed the State’s objection to defense counsel’s question to

Nurse O’Connor, that prior to the commencement of the criminal proceedings, involuntary

mental commitment proceedings had been initiated against Sheehan, and that this was the

kind of evidence the defense was seeking to introduce. Thus, Sheehan contends the District

Court was aware of the theory it sought to develop.

¶23    However, though the District Court may have been aware of the general subject matter

which the defense sought to explore, i.e., Sheehan’s mental condition, it does not follow

therefrom that the District Court was aware of the specific evidence Sheehan intended to

offer in support of his defense theory of an “alternative scenario to explain his apparent state

of intoxication.” The defense did introduce other evidence, through witnesses O’Connor and

Hofer, that would have supported other plausible explanations for Sheehan’s

behavior–specifically, the effects of going into shock and Sheehan’s possible suicidal

actions. It would not have been possible, however, from the arguments given following the

objection, for the District Court to have gleaned the broader defense intentions which


                                               8
Sheehan now argues were denied to him and ruled accordingly. Indeed, Sheehan’s assertion

on appeal that he was deprived of a meaningful opportunity to present a complete defense

which violated due process was not raised before the District Court.

¶24    Based on the record and the briefs, it appears that Sheehan alerted the District Court,

in response to the State’s objection, of his intention to introduce nothing more than the fact

that Sheehan was sent to Glendive for psychiatric examination. If his intention was actually

to elicit further testimony from Nurse O’Connor or other witnesses relating the psychiatric

examination or his mental condition to his behavior on February 20, 2003, he had an

obligation to make the District Court aware of this testimony so that the court could properly

rule on it. See State v. Miller (1988), 231 Mont. 497, 508, 757 P.2d 1275, 1282 (“An offer

of proof should be specific as to the facts to be proven.”). By failing to do so, the defense

also failed to test against the District Court’s ruling other evidence he may have wished to

introduce concerning Sheehan’s mental condition, and we therefore cannot construe the

court’s ruling as applying to anything more than O’Connor’s answer to defense counsel’s

question.

¶25    Hence, the contested ruling of the District Court encompassed only Nurse O’Connor’s

specific testimony, as opposed to the entirety of Sheehan’s “alternative scenario to explain

his apparent state of intoxication.” As previously explained, the court, the prosecutor, and

defense counsel all assumed during arguments in chambers that this testimony was going to

be that Sheehan went to Glendive for a psychiatric evaluation after he was released from the

hospital. Unbeknownst to all parties, however, O’Connor had already answered defense


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counsel’s question, stating that she did not know what happened to Sheehan after he was

released from the hospital.1 There is no reason to believe that she would have given a

different answer had the court overruled–instead of sustained–the State’s objection.

¶26   Thus, the District Court’s ruling on the State’s objection was moot. Because a party

cannot appeal from what amounts to an academic exercise, Sheehan’s claim must be denied.

¶27   Affirmed.



                                                       /S/ JIM RICE



We concur:

/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ PATRICIA O. COTTER
/S/ BRIAN MORRIS




      1
       There has been no challenge to the accuracy of the transcript of the proceedings.

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