                                                                                             March 15 2016


                                           DA 14-0511

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                           2016 MT 63


CITY OF KALISPELL,

              Plaintiffs and Appellees,

         v.

TYLER OMYER, CALVIN ATHY and
GLORIA FERRARI,

              Defendants and Appellants.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause Nos. DC-13-326A, 13-263A
                        and 13-264A
                        Honorable Ted O. Lympus, Presiding Judge


COUNSEL OF RECORD:

                For Appellants:

                        Chad Wright, Chief Appellate Defender, Natalie Wicklund, Assistant
                        Appellate Defender; Helena, Montana

                For Appellees:

                        Timothy C. Fox, Montana Attorney General, Jonathan M. Krauss,
                        Assistant Attorney General; Helena, Montana

                        Charles A. Harball, Kalispell City Attorney, Emily Von Jentzen,
                        Assistant City Attorney; Kalispell, Montana



                                                     Submitted on Briefs: January 27, 2016
                                                                Decided: March 15, 2016


Filed:

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

¶1     Gloria Ferrari, Calvin Athy, and Tyler Omyer (jointly Appellants) were convicted

in the City of Kalispell Municipal Court of various traffic violations including driving

with a suspended license. They appealed their convictions to the Eleventh Judicial

District Court, Flathead County. After the District Court affirmed the convictions, they

appealed separately to this Court. While the factual backgrounds differ slightly, the legal

issue and analysis are identical; therefore we have consolidated these cases for the

purpose of appeal and this Opinion. Attorney Greg Rapkoch represented each of the

Appellants in the Municipal and District Courts. Assistant Appellate Defender Natalie

Wicklund represented all of the Appellants before this Court. We affirm.

                                         ISSUES

       1. Did the District Court err in failing to determine whether § 61-5-212, MCA,
       imposed absolute liability on each of the Appellants?

       2. Did the District Court abuse its discretion by holding that the evidentiary
       “letters of suspension” were admissible as “certified copies of public records”
       under M. R. Evid. 904 (Rule 904)?

                 FACTUAL AND PROCEDURAL BACKGROUND

Gloria Ferrari

¶2     On June 20, 2010, Gloria Ferrari was cited by Kalispell Police Officer A.J.

McDonnell for various traffic violations including driving with a suspended license. The

Kalispell Municipal Court conducted a bench trial on May 30, 2013.            Ferrari was

represented by appointed counsel Rapkoch but was not in attendance.            McDonnell

presented Ferrari’s “Certified Driver Record” generated by the State of Montana


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Department of Justice, Motor Vehicle Division (MVD), as well as six letters from MVD

to Ferrari informing her that her license was suspended.        Counsel objected to the

suspension letters as hearsay and in violation of Ferrari’s United States and Montana

constitutional rights to confrontation. The Municipal Court admitted the evidence over

counsel’s objection. Ferrari was found guilty and sentenced to 180 days in jail with 178

suspended and fined $325.00. She appealed to the District Court.

Calvin Athy

¶3     On September 10, 2012, Calvin Athy was cited by Officer Stan Ottosen of the

Kalispell Police Department for multiple traffic violations including driving with a

suspended license.    At the May 30, 2013 Municipal Court bench trial, Athy was

represented by Rapkoch but Athy did not attend the trial. Ottosen testified at Athy’s trial

and presented Athy’s “Certified Driver Record” as well as three letters from MVD to

Athy notifying him that his license was suspended. Counsel objected to the letters on

hearsay and Confrontation Clause grounds but the Municipal Court admitted the evidence

and found Athy guilty. Athy was sentenced to a 180-day jail sentence with 178 days

suspended and fined $325.00. On June 11, 2013, Athy appealed his judgment to the

District Court.

Tyler Omyer

¶4     On December 8, 2012, Tyler Omyer was cited by Sargent Allen Bardwell of the

Kalispell Police Department for multiple traffic violations including driving a motor

vehicle with a suspended license. The Kalispell Municipal Court conducted a bench trial

on June 27, 2013, at which Omyer was present and represented by Rapkoch. Bardwell

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presented Omyer’s “Certified Driver Record” as well as six letters sent by MVD to

Omyer notifying him that his driver’s license was suspended for reasons stated in the

letters. Omyer objected to the admission of the MVD suspension letters on hearsay and

Confrontation Clause grounds. The Municipal Court admitted the evidence, convicted

Omyer of all offenses, and sentenced him to 180 days in jail with 178 suspended. The

court allowed him to serve his time at the community car wash or the animal shelter.

Additionally, he was fined $325.00. On July 25, 2013, Omyer appealed to the District

Court.

¶5       The three cases were consolidated by the District Court for purposes of appeal.

Counsel for the Appellants had not objected to, nor did he appeal, the Municipal Court’s

admission of the “Certified Driving Record” for each defendant as each record

unequivocally established that the license for each driver was suspended at the time of the

traffic stops and of citations to each. Rather, counsel argued that conviction of the

offense of driving with a suspended license required the City to prove that each defendant

had a culpable mental state, i.e., that they “knew” their licenses were suspended at the

time of their offenses.      Counsel claimed that the only evidence presented of the

Appellants’ knowledge of their suspensions were the MVD suspension letters. Counsel

asserted that these letters were inadmissible because they contained “testimonial hearsay”

subject to the protections of the Confrontation Clauses of the United States and Montana

Constitutions. The certificate of mailing language stamped onto the bottom of each

notification letter and challenged by the Appellants read:



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       The undersigned hereby testifies that on the date below, he or she, as an
       officer or employee of the motor vehicle division, deposited in the United
       States mail at Helena, Montana, a copy of the paper to which this is affixed,
       in an envelope with the postage prepaid, addressed to the person named in
       the paper at his or her last address as shown by the records of the
       Department.
                      ________________________________________________
                      Date               Officer or Employee of Department

Counsel argued that this language constituted testimony and was included in letters that

were “prepared in anticipation of use at trial to prove historical facts relevant to

prosecution.” Counsel claimed that had the evidence been properly excluded, there

would have been no evidence presented at trial establishing a “knowing” culpable mental

state and Appellants could not have been convicted under § 61-5-212, MCA.

¶6     The City of Kalispell responded that the MVD letters were properly admitted as

self-authenticating business records under § 61-11-102, MCA, and Rule 902(4) of the

Montana Rules of Evidence. The City further argued that the challenged letters did not

constitute testimonial evidence triggering the Confrontation Clause and were admissible

under Rule 803(8), M. R. Evid. Lastly, the City countered that under § 26-1-602(24),

MCA, it is presumed that a correctly addressed and mailed letter is received by the

intended recipient and none of the Appellants rebutted this presumption at trial.

¶7     The District Court determined that the stamped certificates of mailing included in

each suspension letter did not constitute testimonial hearsay; rather, the letters were

certified copies of public records and were admissible under Rules 902(4) and 803(8) of

the Montana Rules of Evidence. The court also concluded that Appellants had not




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rebutted the statutory presumption that they had received the suspension letters; therefore,

the court presumed receipt.

¶8     Appellants filed timely appeals.

                                STANDARD OF REVIEW

¶9     Section 3-6-110, MCA, governing a district court’s review of a municipal court’s

ruling, confines the district court’s review to the record and questions of law. Section

3-6-110(1), MCA. In turn, when this Court reviews the district court, we undertake an

independent examination of the record apart from the district court’s decision and will

“affirm the district court when it reaches the right result, even if it reaches the right result

for the wrong reason.” State v. Gai, 2012 MT 235, ¶ 11, 366 Mont. 408, 288 P.3d 164.

Based upon our review of the trial court’s record, we review the trial court’s factual

findings under the clearly erroneous standard, its discretionary rulings for an abuse of

discretion, and its legal conclusions de novo.         State v. Ellison, 2012 MT 50, ¶ 8,

364 Mont. 276, 272 P.3d 646.

                                       DISCUSSION

¶10    Each of the Appellants was convicted under § 61-5-212, MCA, which provides, in

relevant part:

       (1)(a) A person commits the offense of driving a motor vehicle without a
       valid license or without statutory exemption or during a suspension or
       revocation period if the person drives:
       (i) a motor vehicle on any public highway of this state at a time when the
       person’s privilege to drive or apply for and be issued a driver’s license is
       suspended or revoked in this state or any other state . . . .




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¶11    Appellants assert on appeal that the District Court abused its discretion by

admitting testimonial hearsay evidence at trial in violation of the Confrontation Clauses

of the Montana and the United States Constitutions. They claim that testimonial hearsay

is “an out-of-court statement offered for the truth of the matter asserted and where the

declarant spoke in a manner as to create evidence.” They explain that in this case

“unknown government agents purport to testify in writing that [defendant] should have

had notice and knowledge of her [or his] suspended license.” Appellants claim that

testimonial hearsay is only permissible if a court determines a declarant is unavailable

and the defendant had a prior opportunity for cross-examination. They argue this did not

occur. They request that we reverse and remand for new trials with instructions that the

trial court reject admission of the suspension letters.

¶12    The State counters that the suspension letters were not testimonial hearsay but

were contemporaneous business records created for the administration of the MVD’s

operations and not for the purpose of establishing or proving some fact at trial. As such

the letters were admissible. Additionally, the State asserts that even if the letters were

erroneously admitted, the error was harmless because “driving with a suspended license”

is an absolute liability offense that does not require knowledge of the suspension.

¶13    1. Did the District Court err in failing to determine whether § 61-5-212, MCA,
       imposed absolute liability on each of the Appellants?

¶14    We first address the State’s assertion that § 61-5-212, MCA, establishes that

driving with a suspended license is an absolute liability offense which does not require

proof of a mental state. Notably, we have not decided previously whether this offense


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requires proof of a mental state or is an absolute liability offense. To determine whether

the legislature intended an offense to be an absolute liability offense we look to

the language of the statute and the statute’s apparent purpose.          State v. Huebner,

252 Mont. 184, 827 P.2d 1260 (1992).

¶15    In Huebner, we concluded that § 87-3-102, MCA, prohibiting someone from

killing a game animal and abandoning the meat, or removing only the parts suitable for

trophy mounting, was an absolute liability statute based upon the State’s responsibility

for protecting public wildlife resources. Huebner, 252 Mont. at 188, 827 Mont. at 1263.

We relied upon § 45-2-104, MCA, which currently provides that “A person may be guilty

of an offense without having, as to each element of the offense, one of the mental states

of knowingly, negligently, or purposely only if the offense is punishable by a fine not

exceeding $500 or the statute defining the offense clearly indicates a legislative purpose

to impose absolute liability for the conduct described.” Huebner, 252 Mont. at 188,

827 Mont. at 1263. Applying a previous, but similar, version of § 45-2-104, MCA

(1991), the Huebner Court determined that the language of the statute indicated a

legislative purpose to impose absolute liability.

¶16    Turning to § 61-5-212, MCA, the statute does not contain any reference to a

mental state, such as knowingly or purposely. It is clear based upon the many statutes in

which the Legislature requires a specific mental state, for example, §§ 45-5-102,

45-5-201, 45-5-202, and 45-6-204, MCA, that had the Legislature intended to require one

for this statute, it would have done so. Additionally, the legislative purpose of the statute

is not difficult to discern. The State has a compelling interest in keeping unsafe drivers

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off the road, especially drivers whose privileges have been suspended for various reasons

such as unsafe driving, driving while under the influence of alcohol or drugs, or driving

without liability insurance.    State v. Pyette, 2007 MT 119, ¶ 27, 337 Mont. 265,

159 0P.3d 232.

¶17     Furthermore, while we note that § 45-2-104, MCA, is written in the disjunctive

and requires only that the statutory penalty not exceed $500 or that the statute clearly

indicates a legislative purpose to impose absolute liability, in this case both requirements

are met in that § 61-5-212(1)(b)(i), MCA, provides with some exceptions, that a person

convicted of driving during a period of license suspension may be fined “not more than

$500.” For these reasons, we conclude that the statute clearly indicates a legislative

purpose to impose absolute liability and that conviction under this statute does not require

a culpable mental state.

¶18    The elements of driving while suspended include driving “a motor vehicle on any

public highway” when the driver’s “privilege to drive . . . is suspended.” The evidence

presented in each of the Appellant’s trials through admission of their Certified Driver

Records established that they drove vehicles upon the public roads of this State while

their licenses were suspended.      As these were the only requirements necessary for

conviction under § 61-5-212, MCA, the Municipal Court did not err in convicting the

Appellants nor did the District Court err in affirming the Municipal Court. As we

indicated above, we will not overturn a district court when it reaches the right result, even

if it reaches the right result for a different or a wrong reason. Gai, ¶ 11.



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¶19    2. Did the District Court abuse its discretion by holding that the evidentiary
       “letters of suspension” were admissible as “certified copies of public records”
       under M. R. Evid. 904 (Rule 904)?

¶20    We next address the Appellants’ assertion that the letters notifying them of their

suspensions contained “testimonial hearsay” and should not have been admitted or used

to support their convictions.      As indicated above, the District Court affirmed the

Municipal Court’s admission of the suspension letters, finding them to be certified copies

of public records under Rule 902(4).         The court further determined they were not

testimonial in nature and were appropriately admitted under the public records hearsay

exception set forth in Rule 803.

¶21    Rule 803(8), M. R. Evid. provides:

       The following are not excluded by the hearsay rule, even though the
       declarant is available as a witness:
                                           . . .
       (8) Public records and reports. To the extent not otherwise provided in this
       paragraph, records, reports, statements, or data compilations in any form of
       a public office or agency setting forth its regularly conducted and regularly
       recorded activities, or matters observed pursuant to duty imposed by law
       and as to which there was a duty to report, or factual findings resulting
       from an investigation made pursuant to authority granted by law. The
       following are not within this exception to the hearsay rule: (i) investigative
       reports by police and other law enforcement personnel; (ii) investigative
       reports prepared by or for a government, a public office, or an agency when
       offered by it in a case in which it is a party; (iii) factual findings offered by
       the government in criminal cases; (iv) factual findings resulting from
       special investigation of a particular complaint, case, or incident; and (v) any
       matter as to which the sources of information or other circumstances
       indicate lack of trust worthiness.

       Rule 902(4), M. R. Evid. provides:

       Extrinsic evidence of authenticity as a condition precedent to admissibility
       is not required with respect to the following:
                                           . . .

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       (4) Certified copies of public records. A copy of an official record or report
       or entry therein, or of a document authorized by law to be recorded or filed
       and actually recorded or filed in a public office, including data compilations
       in any form, certified as correct by the custodian or other person authorized
       to make the certification, by certificate complying with paragraph (1), (2),
       or (3) or complying with any law of the United States or of this state.

¶22    In Billings v. Lindell, 236 Mont. 519, 771 P.2d 134 (1989), we addressed the

self-authenticating nature of the MVD’s driving records. We explained that the MVD

has the duty to maintain records of license convictions and that it would be unreasonable

for a custodian of the department to be present in court each time a record was necessary

for a trial. Billings, 236 Mont. at 521, 771 P.2d at 136. We discussed some of the

various methods developed by the Legislature through which authenticity is taken as

established for purposes of admissibility. Two such methods were Rules 803(8) and

902(4), M. R. Evid. Billings, 236 Mont. at 521-22, 771 P.2d at 136. Based upon the

plain language of these rules, the statutorily-mandated purpose of MVD’s

record-keeping, and our analysis in Billings, we conclude the District Court did not abuse

its discretion in holding that the suspension letters were admissible under Rules 803 and

904.

¶23    Lastly, we note that our ruling is consistent with multiple U. S. Supreme Court

decisions. That Court distinguishes between testimonial and non-testimonial hearsay, but

has repeatedly declined to offer an exhaustive or comprehensive definition of

“testimonial.” Crawford v. Washington, 541 U.S. 36, 68, 124 S. Ct. 1354, 1374 (2004).

See also Davis v. Washington, 547 U.S. 813, 822, 126 S. Ct. 2266, 2273 (2006).

However, in Davis, the U. S. Supreme Court declared that statements are testimonial


                                            11
when their “primary purpose . . . is to establish or prove past events potentially relevant

to later criminal prosecution.” Davis, 547 U.S. at 822, 126 S. Ct. at 2273-74.

Subsequently, in Melendez-Diaz v. Mass., 557 U.S. 305, 129 S. Ct. 2527 (2009), the

Court further elaborated that “[b]usiness and public records are generally admissible

absent confrontation not because they qualify under an exception to the hearsay rules, but

because—having been created for the administration of an entity’s affairs and not for the

purpose of establishing or proving some fact at trial—they are not testimonial.”

Melendez-Diaz, 557 U.S. at 324, 129 S. Ct. at 2539-40.

¶24    In the case at bar, as in Melendez-Diaz, the primary purpose of the MVD’s

suspension letters is not to provide evidence in future criminal prosecutions but rather to

notify drivers of a license suspension and to create a statutorily-mandated database of

driver’s license records. It is realistic to presume that the vast majority of suspension

letters, and other MVD documentation, exist within the agency’s database and printed

copies are never generated for purposes of criminal prosecutions. This analysis supports

our conclusion that driver’s records are created for the administration of the MVD’s

affairs and not for the purpose of proving a fact at trial.

                                       CONCLUSION

¶25    For the foregoing reasons, we conclude the District Court neither erred nor abused

its discretion in affirming the Municipal Court’s convictions and judgments of the

Appellants.

                                                   /S/ MICHAEL E WHEAT



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We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ BETH BAKER
/S/ JIM RICE




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