                                                                                              08/11/2020


                                          DA 19-0733
                                                                                          Case Number: DA 19-0733

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                         2020 MT 206N


STATE OF MONTANA,

               Plaintiff and Appellee,

         v.

TOBY CARL McADAM,

               Defendant and Appellant.

APPEAL FROM:           District Court of the Sixth Judicial District,
                       In and For the County of Park, Cause No. DC 19-98
                       Honorable Brenda R. Gilbert, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                       Toby McAdam, Self-Represented, Livingston, Montana

                For Appellee:

                       Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant
                       Attorney General, Helena, Montana

                       Bruce E. Becker, Attorney at Law, Livingston, Montana

                       Courtney Lawellin, Livingston City Attorney, Livingston, Montana


                                                   Submitted on Briefs: July 15, 2020

                                                              Decided: August 11, 2020


Filed:

                                 cir-641.—if
                       __________________________________________
                                         Clerk
Justice Jim Rice delivered the Opinion of the Court.

¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Toby Carl McAdam (McAdam) appeals from his conviction after a bench trial in

Livingston City Court, of failure to yield the right of way, in violation of § 61-8-339, MCA,

and operating a motor vehicle upon a public way without liability insurance, in violation

of § 61-6-301, MCA. The City Court, Honorable Holly Happe, presiding, entered written

findings of fact and conclusions of law. Upon McAdam’s appeal from the City Court, a

court of record, the Sixth Judicial District Court, Park County, affirmed the conviction.

¶3     On March 21, 2019, McAdam was involved in a vehicle collision. Prior to the

accident, McAdam was travelling south on 7th Street in Livingston, Montana. The other

driver, Shirley Payne (Payne), was driving east on Clark Street. At the intersection of

7th and Clark, the vehicles collided. Montana Highway Patrol Officer Jason Gunderson

(Officer Gunderson) responded, and determined McAdam was at fault and did not have

insurance. Officer Gunderson cited McAdam for failure to yield to the vehicle on the right

and operating a vehicle without liability insurance.

¶4     McAdam pled not guilty, and the case proceeded to a bench trial, at which McAdam

represented himself. The City Attorney called one witness, Officer Gunderson, who

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explained he cited McAdam for the right of way violation based on the damage to both

vehicles, the locations of both vehicles, the markings on the road, and the statements given

to him by Payne and other witnesses. McAdam testified on his own behalf, but did not call

any other witnesses. The City Court, as the fact finder, found Officer Gunderson’s

testimony to be credible, and convicted McAdam of both offenses.

¶5     On appeal to the District Court, McAdam argued he was deprived of his

constitutional rights at trial because Payne and the other accident witnesses referenced in

the police report did not testify. The District Court stated, “it is clear to this Court, from

the record, that testimony from other potential witnesses would have only been duplicative.

It was up to the [City] to determine which witnesses presented testimony before the Court,

and, had the Defendant wished to have other witnesses present, it was his responsibility to

issue subpoenas for their presence and testimony.” The District Court concluded the record

supported the City Court’s determination that McAdam had committed the offenses, and

affirmed the convictions.

¶6     Upon McAdam’s appeal from City Court, the District Court functioned as an

intermediate appellate court. See §§ 3-5-303 and 3-11-110, MCA. “When district courts

function as intermediate appellate courts for appeals from lower courts of record, we

review the appeal de novo as though it were originally filed in this Court. We examine the

record independently of the district court’s decision, reviewing the lower court’s findings

of fact under the clearly erroneous standard, its discretionary rulings for abuse of discretion,




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and its legal conclusions for correctness.” City of Missoula v. Metz, 2019 MT 264, ¶ 11,

397 Mont. 467, 451 P.3d 350 (citations omitted).

¶7     As he did before the District Court, McAdam argues in this appeal that the

convictions should be overturned because the trial violated his constitutional right to

confront the witnesses against him, as the State did not call Payne and the other listed

accident witnesses to testify. While McAdam is correct that a criminal defendant has the

right to confront witnesses against them, see Sixth Amendment of the United States

Constitution and Article II, Section 24, of the Montana Constitution, that does not mean

the prosecution has a duty to call every witness to testify. Rather, the prosecution may

decide what witnesses to call to carry its burden of proof against the defendant, and the

defendant has the right to confront any of the witnesses whose testimony is used against

him or her. In other words, if a witness is not called to testify, then the right to confront

that witness does not arise. As the Sixth Amendment states, “In all criminal proseuctions,

the accused shall enjoy the right . . . to be confronted with the witnesess against him.”

(Emphasis added). The prosecution may decide to call only one witness, and forego other

witnesses, at the risk of not carrying its burden, as the City did here. If the prosecution

chooses to do so, the defendant has no inherent right to confront those witnesses whose

testimony was not presented. We conclude McAdam’s constitutional right to confront

witnesses was not violated.

¶8     McAdam also argues the City Court improperly credited the testimony of

Officer Gunderson, while rejecting McAdam’s testimony. “[B]ecause an assessment of

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testimony is best made upon observation of the witness’s demeanor and consideration of

other intangibles that are only evident during live testimony, the fact-finder is uniquely in

the best position to judge the credibility of witnesses[.]” Ditton v. DOJ Motor Vehicle Div.,

2014 MT 54, ¶ 33, 374 Mont. 122, 319 P.3d 1268 (citing State v. Worrall, 1999 MT 55,

¶ 50, 293 Mont. 439, 976 P.2d 968) (internal citation omitted). Therefore, on an appeal

from a bench trial, this Court generally “defer[s] to the trial court regarding the credibility

of witnesses and the weight to be accorded to their testimony.” Ditton, ¶ 33 (citing

State v. Lally, 2008 MT 452, ¶ 24, 348 Mont. 59, 199 P.3d 818). Here, the City Court was

the fact-finder, and therefore, was in the best position to assess the credibility of the witness

testimony. Regarding accident fault, we find no reason upon a review of the record to

believe the City Court erred by crediting Officer Gunderson’s testimony.              Although

Officer Gunderson stated he relied on the statements of other individuals when deciding

whether to ticket McAdam, McAdam does not argue, nor it is apparent from the record,

that Officer Gunderson offered hearsay testimony.                As the City Court stated,

Officer Gunderson’s conclusion that McAdam was at fault for the accident was also based

on the damage to both vehicles, the locations of both vehicles, and the markings on the

road, about which Officer Gunderson provided photographs to enhance his testimony. Nor

was the City Court’s apparent lack of acceptance of McAdam’s testimony regarding why

he did not have insurance clearly erroneous. The City Court acknowledged McAdam’s

proffered excuse in its order, but applied § 61-6-301, MCA, which provides “[i]t is




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unlawful for a person to operate a motor vehicle upon ways of this state . . . without a valid

policy of liability insurance in effect[.]”

¶9     We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. This appeal presents

no constitutional issues, no issues of first impression, and does not establish new precedent

or modify existing precedent. In the opinion of the Court, the case presents a question

controlled by settled law or by the clear application of applicable standards of review.

¶10    Affirmed.


                                                  /S/ JIM RICE


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ INGRID GUSTAFSON




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