No. 87-150
IN THE SUPREME COURT OF THE STATE OF MONTANA
1387
STATE OF MONTANA,
Plaintiff and Respondent,
-vs-
TODD MICHAEL RYAN,
Defendant and Appellant.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and for the County of Gallatin,
The Honorable Thomas Olson, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert W. Heilig, Billings, Montana
For Respondent :
Hon. Mike Greely, Attorney General, Helena, Montana
John Paulson, Asst. Atty. General, Helena
A. Michael Salvagni, County Attorney, Bozeman, Montana
Martin D. Lambert, Deputy County Attorney, Bozeman
-- -
Submitted on Briefs: Sept. 3, 1987
Decided: October 27, 1987
Filed: OCT 21 1987
Clerk
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
This case arose in the District Court for the Eighteenth
Judicial District of Montana, in and for Gallatin County.
Mr. Ryan appeals his conviction of being in actual physical
control of a motor vehicle while under the influence of
alcohol. We affirm.
The issue is whether the District Court erred in refus-
ing to give defendant's offered Instruction No. 11 concerning
circumstantial evidence.
A highway patrol officer noticed Mr. Ryan's vehicle
parked on an interstate on-ramp at about 2:30 a.m. Its
lights were on and its engine was running. As the officer
approached the vehicle, she saw Mr. Ryan lying across the
front seat, with his feet near the gas and brake pedals. She
roused Mr. Ryan with difficulty, and noted that he smelled
strongly of alcohol and had trouble walking. After having
Mr. Ryan perform some field sobriety tests, the officer
placed him under arrest.
The officers present when Mr. Ryan arrived at the
stationhouse testified that Mr. Ryan performed a series of
deep knee bends and ran in place while awaiting booking. He
was given a breath analysis test and repeated the field
sobriety tests on videotape. The breath analysis test showed
a blood alcohol concentration of .158.
Mr. Ryan was charged with violation of 5 61-8-401 (1)(a),
MCA: "It is unlawful . . . for any person who is under the
influence of ... alcohol to drive or be in actual physical
control of a vehicle upon the ways of this state open to the
public." After he was tried and convicted in justice court,
Mr. Ryan appealed to district court. At his jury trial in
district court, the defense offered an instruction on
circumstantial evidence. The instruction was refused. The
jury found Mr. Ryan guilty.
Did the District Court err in refusing to give defen-
dant's offered Instruction No. 11 concerning circumstantial
evidence?
Defendant's offered Instruction No. 11 was:
You are instructed that if you find that the
evidence in this case is susceptible of two con-
structions or interpretations, each of which ap-
pears to you to be reasonable, and one of which
points to his innocence, it is your duty under the
law, to adopt that interpretation which will admit
of the defendant's innocence, and reject that which
points to his guilt.
The District Court refused the instruction, "in favor of the
reasonable doubt instruction." The defense argues that this
refusal wrongfully deprived it of its theory that Mr. Ryan
may have acted responsibly in stopping his vehicle and park-
ing it when he felt the effects of alcohol were interfering
with his ability to drive.
In a case based solely on circumstantial evidence, an
instruction such as defendant's No. 11 is proper. State v.
Lucero (Mont. 1984), 693 P.2d 511, 513, 41 St.Rep. 2509,
2511-12. However, such an instruction is not proper where
the elements of the crime charged are found in the direct
testimony of witnesses. State v. Freeman (1979), 183 Mont.
334, 343, 599 P.2d 368, 373. Here, the arresting officer
testified to the essential elements of the crime. Notwith-
standing the defense's theory that Mr. Ryan may have stopped
driving when he realized that he was under the influence of
alcohol, the testimony of the arresting officer supports the
conclusion that he was in actual physical control of the
vehicle when she came upon him. He was the only person in
the vehicle, was in the front seat as if flopped over from
the driver's seat, and had the vehicle's engine running and
its lights on. Those facts are sufficient to prove actual
physical control of the vehicle. See State v. Taylor (1983),
203 Mont. 284, 661 P.2d 33.
Further, the defense was not deprived of its theory when
the court refused to give proposed Instruction No. 11. The
court gave an instruction on reasonable doubt. If the de-
fense's theory raised a reasonable doubt in the jury's minds
as to Mr. Ryan's guilt, the jury could have found Mr. Ryan
not guilty. We hold that the court did not err in refusing
to give proposed Instruction No. 11.
Af firrned.
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