                                                                                               08/23/2016


                                           DA 15-0569
                                                                                          Case Number: DA 15-0569

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2016 MT 206



STATE OF MONTANA,

              Plaintiff and Appellee,

         v.

SHAWNA MICHELLE DAVIS,

              Defendant and Appellant.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DC-12-357D
                        Honorable David M. Ortley, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

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

                For Appellee:

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

                        Edward J. Corrigan, Flathead County Attorney, Caitlin Overland, Deputy
                        County Attorney, Kalispell, Montana



                                                    Submitted on Briefs: June 8, 2016

                                                               Decided: August 23, 2016


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Shawna Davis appeals from the District Court’s Opinion and Order affirming the

Justice Court’s denial of Davis’s motion for judgment of acquittal. We affirm.

¶2     The issue on appeal is whether the District Court properly affirmed the Justice

Court’s decision denying Davis’s motion to dismiss the criminal charge.

                  FACTUAL AND PROCEDURAL BACKGROUND

¶3     On May 12, 2012, Montana Highway Patrol Trooper Fetterhoff stopped Davis’s

vehicle on a public highway in Flathead County because she was speeding. Fetterhoff

asked Davis for proof of insurance. Davis failed to provide any proof of insurance and

stated “I don’t have insurance.” Trooper Fetterhoff gave Davis a citation for violating

§ 61-6-301(4), MCA, which prohibits operating a motor vehicle without liability

insurance. Davis failed to appear at the Justice Court omnibus hearing and then failed to

appear at the Justice Court bench trial on September 4, 2012.

¶4     At trial the State presented the testimony of Trooper Fetterhoff who described the

traffic stop, Davis’s failure to provide proof of insurance, and her statement that she had

no insurance. After the State presented its case, Davis’s attorney moved to dismiss the

charge for insufficient evidence.1 The Justice Court declined to do so and found Davis

guilty of the charge.      On September 20, 2012, Davis appealed the Justice Court



       1
         Defense motions for a directed verdict or for acquittal are “more appropriately entitled
motions to dismiss for insufficient evidence.” State v. Farmer, 2008 MT 354, ¶ 6, 346 Mont.
335, 195 P.3d 800.


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conviction to District Court. After briefing the District Court issued the Opinion and

Order affirming the conviction.2

                                 STANDARD OF REVIEW

¶5     When a justice court decision is appealed, the district court functions as an

intermediate appellate court and its review is confined to the record and issues of law.

Sections 3-5-303 and 3-10-115, MCA; State v. Luke, 2014 MT 22, ¶ 9, 373 Mont. 398,

321 P.3d 70. On appeal of the district court’s decision, this Court reviews the record

independently, applying the clearly erroneous standard to the justice court’s factual

findings and reviewing discretionary rulings for abuse of discretion. Luke, ¶ 9.

¶6     This Court reviews a lower court’s ruling on a motion to dismiss in a criminal case

de novo, to determine whether the court’s conclusions of law are correct. State v. Kirn,

2012 MT 69, ¶ 8, 364 Mont. 356, 274 P.3d 746.3

                                        DISCUSSION

¶7     Issue: Whether the District Court properly affirmed the Justice Court’s decision
       denying Davis’s motion to dismiss the criminal charge for insufficient evidence.

¶8     The State charged Davis with a violation of § 61-6-301(4), MCA, which makes it

unlawful for a person to operate a motor vehicle “upon the ways of this state open to the

public . . . without a valid policy of liability insurance . . . .” Davis argues that the Justice

       2
        Briefing on Davis’s appeal to the District Court was completed on January 14, 2013.
Nothing else transpired in the appeal until the District Court’s Opinion and Order issued July 28,
2015, some two and a half years later.
       3
          We reject the State’s contention that Davis failed to preserve the issue for review by
failing to specifically object to Trooper Fetterhoff’s testimony. Davis preserved the issue on
appeal by moving to dismiss for insufficient evidence. State v. McCarvey, 2005 MT 308, ¶ 15,
329 Mont. 439, 124 P.3d 1131.
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Court should have dismissed the charge because the State’s only evidence was her

statement to Trooper Fetterhoff that “I don’t have insurance.” Davis contends that her

statement was a confession that could not be used to convict her because it was not

corroborated by any other evidence.          Montana law requires that a defendant’s

extrajudicial confession may not be admitted unless the prosecution introduces

“independent evidence tending to establish the commission of the crime charged.”

Section 46-16-215, MCA.

¶9     The District Court determined that Davis’s statement to Trooper Fetterhoff was

not a confession, but was an admission that could be considered without corroborating

evidence. The District Court relied upon the established distinction that a confession is a

statement by the defendant that he committed the crime, while an admission is a

statement by the defendant of some specific fact or facts that could tend to establish guilt

or some element of the offense. We agree with the District Court. Montana Rule of

Evidence 801(a) defines “statement” as any oral or written assertion. Statements made

by a party-opponent and offered against that party are not hearsay and can be allowed

into evidence as admissions. M. R. Evid. 801(2); State v. Smith, 276 Mont. 434, 441, 916

P.2d 773, 777 (1996).

¶10    The distinction between a confession and an admission is consistent with

established Montana law. State v. Hallam, 175 Mont. 492, 503, 575 P.2d 55, 62 (1978)

(a confession is an admission of the crime itself while an admission concerns only some

specific fact that tends to establish guilt); State v. Dupre, 200 Mont. 165, 172, 650 P.2d

1381, 1384-85 (1982) (a confession is an acknowledgement of guilt after an offense, and

                                             4
does not include a mere statement of an independent fact from which guilt may be

inferred); State v. Thompson, 263 Mont. 17, 25, 865 P.2d 1125, 1130 (1993) (admission

is an avowal of a fact or circumstance from which guilt may be inferred); State v. Goltz,

197 Mont. 361, 369, 642 P.2d 1079, 1084 (1982) (an admission may include a false

exculpatory statement).

¶11    The assertion by Davis that she did not have insurance was an admission and not a

confession. The statement pertained to an element of the offense (not having valid

insurance) but it did not encompass the entire offense. As the District Court found, the

other elements of the offense were operating a motor vehicle, and doing so upon a way of

the state open to the public. Section 61-6-301(4), MCA. Since the statement was not a

confession the requirements of corroboration applicable to a confession did not apply.

¶12    In this case the Justice Court heard Trooper Fetterhoff’s testimony that Davis said

“I don’t have insurance.” In addition the evidence showed that Davis did not produce

evidence of insurance when asked to do so, and that she was operating a motor vehicle

upon a way open to the public. These pieces of evidence, taken together, were sufficient

to establish that Davis violated § 61-6-301(4), MCA. Davis’s failure to produce evidence

of insurance when asked is circumstantial evidence of guilt, which may be relied upon to

prove a violation of the statute. State v. Chaussee, 2011 MT 203, ¶ 16, 361 Mont. 433,

259 P.3d 783.

                                    CONCLUSION

¶13    There was sufficient evidence to convict Davis of the charged offense and we

affirm the District Court.

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                          /S/ MIKE McGRATH


We Concur:

/S/ MICHAEL E WHEAT
/S/ BETH BAKER
/S/ PATRICIA COTTER
/S/ JIM RICE




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