                                              No.     84-339

                   I N THE SUPREME COURT O F THE STATE O F MONTANA

                                                      1985




STATE OF MONTANA,

                 P l a i n t i f f and R e s p o n d e n t ,

      -vs-

DON L I A S ,

                 Defendant ancYAppellant.




APPEAL FROM:        D i s t r i c t C o u r t of t h e F i r s t J u d i c i a l D i s t r i c t ,
                    I n and f o r t h e C o u n t y of L e w i s & C l a r k ,
                    T h e H o n o r a b l e G o r d o n B e n n e t t , Judge p r e s i d i n g .



COUNSEL O F RECORD:


         For Appellant:

                 C h a r l e s E.   Petaja;       P e t a j a and S m o y e r , H e l e n a ,
                 Montana


         F o r Respondent:

                 H o n . M i k e G r e e l y , A t t o r n e y G e n e r a l , H e l e n a , Montana
                 M i k e M c G r a t h , C o u n t y A t t o r n e y , H e l e n a , Montana
                 C a r o l y n A. C l e m e n s , D e p u t y C o u n t y A t t o r n e y , H e l e n a


                                                         ---------
                                              S u b m i t t e d on B r i e f s :   June 1 3 , 1 9 8 5
                                                                   Decided:        September 26,          1985



Filed:       SEP 2 6 5985


                                         ----------
                                              Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.
      The appellant, Don Lias, was convicted in Justice Court
on the charge of driving under the influence.     He appealed to
District Court, and a jury returned a verdict of guilty.     He
now appeals to this Court.
     We affirm.
     At about 9:00 p.m.       on May   28, 1983, appellant, in
search of his business partner, went to a stock car race near
Helena, Montana.    He purchased one beer and then a second.
After purchasing the second beer he was involved in a fight,
and the beer was spilled on him.    He was injured in the fight
and suffered severe pain and disorientation.      He then found
his business partner and left to go home.     He contends he did
not drink any more that night.
      Between 11:OO p.m.     and 12:OO midnight, a highway pa-
trolman found appellant asleep in a vehicle parked in the
median of Interstate 15.     The vehicle lights were on, and the
engine was running.
     When appellant awoke, the patrolman found him somewhat
impaired in speech and mobility.       The patrolman detected a
strong smell of alcohol.   After some discussion and informing
himself of the situation, the patrolman arrested appellant
for driving under the influence.       Appellant refused a field
sobriety test.     He showed indications of belligerence and
noncooperation.    Because of appellant's belligerence, the
patrolman radioed for help.      An assisting officer arrived,
and appellant was taken to jail.
      In Justice Court, on August 30, 1983, appellant was
found guilty of driving under the influence.      He appealed to
the District Court, and on April 9, 1984, a six-person jury
returned a verdict of guilty.           Appellant appeals to this
Court.
         The issues presented are:
         1.   Whether certain testimony elicited by the prosecu-
tor was in violation of an order granting a motion in limine
to preclude certain testimony and, if            so, absent timely
objection, whether was it plain error, depriving appellant of
a fair trial.
         2.   Whether sufficient evidence supports the verdict of
guilty beyond a reasonable doubt.
      The first issue is whether certain testimony violated
an order precluding mention of certain matters and, if so,
whether, absent a timely objection, it falls within "plain
error."       The testimony violated the order, but no objection
was made.       We determine that the plain error doctrine does
not apply.
      On appeal from Justice Court to District Court, a.ppel-
'n
 at   filed a motion in limine to preclude:
               1. Any reference to a find.ing of guilty
               in Justice Court.
               2. Any reference, by way of impeachment
               or rebuttal or otherwise, to any state-
               ments made by Defendant in Justice
               Court.
      A minute entry is the only record of a ruling on the

motion in limine.       It stated that the motion was granted.
The State argues that it understood the granting of the
motion to not preclude evidence of statements made by the
appellant under oath for purposes of impeachment.              The mo-
tion, according to the minute entry of the clerk of court,
was granted in its entirety and prohibited such testimony.
However, the record as to precisely what the court ruled. in
chambers with       relation   to   the motion   in   limine   is not
complete, as no record exists of the discussion and ruling on
the motion other than the clerk of court's minute entry.
Rule 613, Mont.R.Evid.,      authorizes the use of prior inconsis-
tent statements for the purpose of impeachment.
         The   questioned   testimony was   testimony elicited   on
cross-examination and testimony by a rebuttal witness called
to impeach appellant by a prior inconsistent statement.          The
subsequent inconsistent statement was elicited by the prose-
cution on cross-examination:
               Q.  Isn't it true that on August 30,
               1983, while under oath you stated that
               you had had nothing to drink on May 28,
               1983?
               A.   I don't think so.
         In response to a question regarding statements made by
appellant on August 30, 1983, concerning drinking, the rebut-
tal witness, called to impeach the above testimony, stated:
               A. He said, no, he didn't, he hadn't
               consumed any alcohol that day.
         August 30, 1983, was the date of the trial at Justice
Court.       All reference to statements made by the appellant at
that trial were prohibited by the granting of the motion in
1imine   .     It wa.s error for the prosecution to elicit the
statement on cross-examination, and it was error to introduce
the rebuttal testimony.        However, such errors are, in this
case, harmless errors.
         The absence of appellant's objection to or the court's
intervention in the cross-examination and rebuttal testimony
suggests that counsel and         the   court recognized   that the
motion in limine could not properly prevent the use of prior
inconsistent statements for impeachment purposes under Rule
613, M0nt.R.Evi.d.      Here the substantial rights of the appel-
lant were not affected.          Viewing the entire record, the
questioned testimony could only have had       little, if any,
damaging effect on the jury determination.     If error, it was
harmless error, and      the   "plain error" doctrine does not
apply.      Errors not affecting substantial rights shall be
disregarded.     Section 46-20-702, MCA.
      The second issue is whether substantial evidence sup-
ports the jury verdict.     In applying the substantial evidence
test to determine whether there was sufficient evidence to
support the jury verdict, this Court is governed by estab-
lished principles.      In applying the test the evidence is
viewed in a light most favorable to the prevailing party.
The weight of the evidence and the credibility of the wit-
nesses are exclusively the province of the trier of fact.    If
the evidence conflicts, it is within the province of the
trier of fact to determine which shall preva-il. The test is
met if a reasonable mind would accept the evidence as sup-
porting the conclusion reached.     State v. Green (Mont. 1984),
685 P.2d 370, 371-372, 41 St.Rep. 1562, 1564; State v. John-
son (1982), 197 Mont. 122, 127, 641 P.2d 462, 465; State v.
Martinez (1980), 188 Mont. 271, 281-282, 613 P.2d 974, 980.
         In this case substantial evidence supports the jury
verdict.     Appellant was found asleep in his vehicle parked in
an interstate median.      The vehicl~e lights were on, and the
engine was running.      He was impaired in speech and mobility
and there was a strong smell of a.lcoho1 about him.   He showed
signs of belligerence and noncooperation.
         Affirmed.
We concur:




      Justices
Mr.    J u s t i c e W i l l i a m E . Hunt, S r . ,       dissenting:




        I dissent              and would r e v e r s e .         After h i s conviction i n

Justice           Court,        where     he      appeared       pro     se,    the      defendant

appealed: t o t h e D i s t r i c t C o u r t .             Prior t o trial.,            defendant

moved t h e c o u r t and t h e c o u r t g r a n t e d a m o t i o n i n l i m i n e t o

prevent           all     references       in     the    trial     d e novo       in    the     above

c a u s e t o any o f t h e f o l l o w i n g :

        1. Any r e f e r e n c e t o a f i n d i n g o f g u i l t i n J u s t i c e
        Court.

        2.     Any  reference,        bl7 way     of       impeachment      or
        r e b u- o r o t h e r w i s e , t o a n y s t a t e m e n t s made by
        -      ttal
        defendant i n J u s t i c e Court.

        There a r e t h r e e i s s u e s i n t h i s case.               They a r e :

        1.          Whether         reversible          error     was     committed         by    the

prosecutor,              when,     d u r i n g cross-examina.tj.on         of    t h e defendant

and w i t h o u t o b j e c t i o n by           t h e defendant,        h e asked q u e s t i o n s

that were            in violation           of     the order       g r a n t i n g a motion         in

limine    .
        2.        Whether t h e t e s t i m o n y a d m i t t e d w i t h o u t o b j e c t i o n i n

violati.on of              the court's           o r d e r was   "plain error" depriving

a p p e l l a n t of a f a i r t r i a l .

        3.        Whether s u f f i c i e n t e v i - d e n c e s u p p o r t s t h e v e r d i c t o f

g u i l t y beyond a r e a s o n a b l e d o u b t .

        A m o t i o n i n l i m i n e may b e u s e d t o e x c l u d e e v i d e n c e t h a t ,

even         if      relevant,            has      probative           value      substantially

o u t w e i g h e d by t h e d a n g e r of u n f a i r p r e j u d i c e .     See, Rule 4 0 3 ,

M.R.Evid.               A u t h o r i t y f o r t h e g r a n t i n g of a motion i n l i m i n e

rests        with        the     inherent        power    of     the    court      to    admit      or

exclude           evidence          and    to      take     such       precautions         as     are

necessary t o afford a f a i r t r i a l f o r a l l parties.                            Wallin v.
Kinyon Estate (1974), 164 Mont. 160, 1.64-1.65, 519 P. 2d 1236,
1238, citing 94 A.JJ.R.2d 1087.
     As Professor Crowley has stated:
     The motion in limine is not provided for in either
     the statutes of Montana or the Rules of Civil
     Procedure. It has, however, been recognized as a
     valid and useful procedure by the Montana Supreme
     Court in several cases !the first and principal
     decision endorsing its use was Wallin v. Kinyon
     Estate, 164 Mont. 160, 519 P.2d 1236).
     The Latin phrase "in limine" means "at the
     threshold" or "in theebeginning"  and was used at
     the early common law to denote motions that were
     preliminary in character. Currently , however, the
     term is used to denote motions made before or even
     during trial to forbid certain lines of inquiry or
     limit or prohibit the use of particular evidence."
     William F. Crowley, Montana Pleading and Practice
     Forms, p. 99 (1983).
     The   prosecution    gave   as   its reason     for asking the
question that raised the first issue in this case, as that
its understanding of the court's ruling was that the State
could not present evidence that appellant had been convicted
in   Justice Court,      but   that   it   could,   for   purposes   of
impeachment, present evid-ence of statements made by appel-lant
under oath.   I think that the motion is plain on its face and
it would be difficult to believe that there could be any
mention or reference to the Justice Court trial for any
purpose, incl-uding impeachment.
     The motion was argued in chambers.             The record is a
minu-te entry that states, " lpl resent in chambers, out of the
presence of the jury, were the Deputy County Attorneys           . ..
attorney for the defendant        . . ..     Upon presentation the
Court denied the motion to dismiss and granted the motion in
limine."   The prosecution's argument that its understanding
of the court's ruling was that the State could not present
evidence that appellant had been convicted in Justice Court,
but that it could, for purposes of             impeachment, present
evidence of statements made by appeilant under oath is not
persuasive.        As this Court has stated, "[ilt is not the duty
of   the   prosecution             to    make    independent        determinations
concerning the admissibility of evidence once the court rules
such evidence is inadmissible.                   Willful attempts by counsel
to place excluded evidence before the jury may result not
only in a mistrial, but reversal."                     State v. Bain (1978), 176
Mont. 23, 29, 575 P.2d 919, 923.
       Defendant argues that he did not object for the reason
that an objection or a motion to strike would not have cured
the damage done to defendant in violation of his substantial
rights.       He    cites      a    recent case of             this Court     finding
prejudicial and reversible error, because an admonition by
the court to disregard the information would not suffice to
remove the prejudice from the minds of the jurors because
"the    goose      is    already         cooked."         Workman       v.   McIntyre
Construction Company (Mont. 1980), 617 P.2d 1281, 1285, 37
St.Rep. 1637, 1.642.
       Defendant        also       argues       that     the     conduct      of     the
prosecution in introducing prejudicial evidence in violation
of   the   court's      ruling, has          deprived      him    of a       fair and
impartial trial, and is therefore grounds for a new trial.

In   - 575 P.2d
     Bain,                     at       923, this       Court    said    that      " [iln
determining whether such questions are so prejudicial to the
defendant as to require reversal, this Court must look (1) to
the reasonable inference to be drawn from the question, State
v.   Toner,     [(1953), 127 Mont.              283, 263 P.2d        9711 and        (2)

whether such repeated attempts to offer excluded evidence
might have contributed to the conviction.                         State v. Langan
(1968), 151 Mont. 558, 445 P.2d 565."
     What is the inference to be drawn from the questions
asked     of   appellant     in     this   case?     Since   there was    no
reference directly to the Justice Court trial and conviction,
the questions and answers on cross-examination of the witness
on   rebuttal     must       show     indirectly     that    defendant   was
prejudiced.
        In District Court on cross-examination, in response to
the questions of the prosecution, the appellant testified as
follows:
     Q.     Mr. Lias, did you on August 30th, 1983, while
     you      were under oath make certain statements
        regarding   the  same issues that we're      here
        discussing today? A. On August 30? Yes.
     Q. Isn't it true that on August 30th, 1983, while
     under oath you stated that you had nothing to drink
     on May 28th of 1983? A. I don't think so.
     Q.   Mr. Lias, isn't it true that on August 30th,
     1983 you stated that under oath, and, once again,
     that you had no idea how the smell of alcohol got
     on y ;
         o r body on May 28th, 1.983? A. The testimony
     - August 30th you say? (Emphasis added.)
     on
     Q.    Yes.
     The rebuttal. witness testified as follows:
     Q.     Okay. Dan, did you have an opportunity on or
        about August 30th to hear some statements made by
        the defendant in this case? A. Yes, I did.
     0.   And during the time that you heard those
     statements, - you recall whether - - - -
                 do                   or not he was
     under oath? A.   Yes, he was.  (Emphasis added.)
        I would hold that these kind of questions raise a strong
inference      that    the    jury    might   well    conclude    that   the
defendant had         been   tried in another court and           that his
testimony was conflicting.             The actions of the prosecution
were done in violation of the order of the court.
     As to the second part of the Bain rule, that "whether
such repeated attempts to offer excluded testimony might have
contributed to the conviction" we must                  only decide here
whether       the     one     and     very      successful          attempt         to     get   the

e v i d e n c e i n was a c o n t r i b u t i n g f a c t o r t o t h e c o n v i c t i o n .    The
e v i d e n c e i n t h i s c a s e was c o n f l i c t i n g .   The a r r e s t i n g o f f i c e r

and t h e d e p u t y t h a t came t o h i s a s s i s t a n c e b o t h t e s t i f i e d

that     t h e d e f e n d a n t was under t h e i n f l u e n c e o f              a l c o h o l and

based     their      o p i n i o n on t r a i n i n g and e x p e r i e n c e        i n dealing

w i t h p e r s o n s under t h e i n f l u e n c e o f a l c o h o l .       Ms.     E d i e Wood,

a w i t n e s s c a l l e d by t h e d e f e n s e t e s t i f i e d t h a t t h e d e f e n d a n t
had been i n a f i g h t t h a t day and d u r i n g t h a t f i g h t t h e b e e r

t h a t h e h e l d i n h i s hand was s p i l l e d a l l o v e r him.                  After the
f i g h t s h e h e l p e d him up from t h e ground.                 She d i d n o t see him

d r i n k any more b e e r .          She t e s t i f i e d t h a t d e f e n d a n t had been

h i t and k i c k e d s e v e r e l y d u r i n g t h e f i g h t and was u n s t e a d y and

c o m p l a i n i n g a b o u t i n j u r i e s t o h i s body.      He t o l d h e r t h a t he

t h o u g h t t h a t he w a s a l r i g h t e x c e p t f o r h i s hand.           She d i d n o t
see him a g a i n t h a t n i g h t .

        Another w i t n e s s c a l l e d by t h e d e f e n s e , Roger Hayle, t h e

p a r t n e r of t h e d e f e n d a n t i n t h e egg b u s i n e s s , t e s t i f i e d t h a t

h e saw t h e d e f e n d a n t t h a t day and t h a t t h e d e f e n d a n t t o l d him

that     he    had    been      in    a   f i g h t and complained              of       h i s hand.

Hayle t e s t i f i e d t h a t d e f e n d a n t ' s hand was swol.len up t o t h e
p o i n t where you c o u l d n ' t s e e t h e m u s c l e s .        H e n o t e d bumps and

b r u i s e s on t h e head of t h e d e f e n d a n t .             H e offered t o drive

t h e d e f e n d a n t t o t h e d o c t o r o r home b u t t h e d e f e n d a n t r e f u s e d

b e c a u s e h e needed h i s t r u c k t o g e t t o work.                   The d e f e n d a n t
t o l d him t h a t h e had t o be a t work by 6:00                            a.m.       t h e next
morning s o h e would have t o go home i n h i s t r u c k s o t h a t h e
would have it t o go t o work.                        Hayle t e s t i f i e d t h a t h e had
worked a s a b a r t e n d e r and had some e x p e r i e n c e w i t h s e e i n g

i n t o x i c a t e d p e o p l e and i n h i s o p i n i o n t h e d e f e n d a n t was n o t

i n t o x i c a t e d when h e saw him a t t h e r a c e s .             H e testified that
he   offered     to    drive     the   defendant home           because of    his
injuries    and       not   because    he    thought       he   was   under   the
influence.
      The trial judge who was in the best position to weigh
the effects of the testimony was not called upon to rule in
this matter because there was no objection.                      We are called
upon to decide a question that was not before the trial
judge, but is raised for the first time on appeal.                     I believe
that the adverse effect of the testimony obtained for the
purpose of impeachment may well have influenced the jury.
The defendant's         failure to object does not overcome the
prejudice    he    suffered      as    a    result of       the prosecution's
violation of the court order that there cannot be 'Yalny
reference, by way of impeachment or rebuttal or otherwise, to
any statements made by the Defend-ant in Justice Court."
        I do not consider the second issue of plain error or the
third    issue of whether          there was        sufficient evidence to
support the verdict of guilty beyond                    a reasonable doubt
because     of    my    belief    that      there    was    reversible    error
committed by the prosecutor.
        I would reverse.




Mr. Justice John C. Sheehy, concurs in the foregoing dissent
of Mr. Justice Hunt.
