State v. Berosik

No

No. 98-464

IN THE SUPREME COURT OF THE STATE OF MONTANA

1999 MT 238

296 Mont. 165

P.2d 775

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DARWIN KEITH BEROSIK,

Defendant and Appellant.

APPEAL FROM: District Court of the Eleventh Judicial
District,

In and for the County of Flathead,

The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Julianne Hinchley, Attorney at Law, Kalispell, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan,

Assistant Attorney General, Helena, Montana

Thomas J. Esch, Flathead County Attorney; Ed Corrigan, Deputy

Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: June 10, 1999

Decided: October 5, 1999

Filed:

__________________________________________

Clerk

Justice W. William Leaphart delivered the Opinion of the Court.

¶ Appellant Darwin Berosik (Berosik) appeals from the judgment and conviction of
the Eleventh Judicial District Court, Flathead County.

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¶ We affirm.

¶ The following issues are raised on appeal:

¶ 1. Whether the District Court erred in denying Berosik's motion for mistrial.

¶ 2. Whether the District Court abused its discretion in admitting a police booking
form.

Standard of Review

¶ We review a district court's denial of a motion for mistrial to determine whether
the district court abused its discretion. State v. Partin (1997), 287 Mont. 12, 951 P.2d
1002. We review evidentiary rulings to determine whether a district court has abused
its discretion. Seizure of $23, 691.00 in U.S. Currency (1995), 273 Mont. 474, 905 P.2d
148.

Factual and Procedural Background

¶ In July, 1997 Berosik was driving north on highway 93 in the late evening with his
brother, Kenneth Berosik (Kenneth), when Highway Patrol Officer Lavin stopped
him because Berosik had not dimmed his brights in response to oncoming traffic.
Officer Lavin saw beer cans in the car and smelled alcohol. Officer Lavin requested a
driver's license, registration, and proof of insurance. Berosik said he did not have
those documents and told Officer Lavin that his name was Kenneth. Officer Lavin
returned to his car to check the status of Berosik's driver's license and called for
backup. Officer Watson arrived within several minutes. When Officer Lavin went
back to Berosik's car, he smelled alcohol on Berosik's person and had him get out of
the car. Berosik appeared "uneasy on his feet;" even when he stood still "his body
was swaying." Officer Lavin had Berosik perform a horizontal gaze nystagmus test
(HGN). Berosik scored a six out of a possible six, suggesting that he was impaired
from alcohol. While Officer Lavin returned to his car to prepare a portable breath
test, Officer Watson asked Berosik's brother, Kenneth, for identification. Kenneth
replied, "F-O." Kenneth got out of the car and tussled with Officer Watson while
Berosik apparently encouraged Kenneth, calling him "brother" but not "Kenneth."
When Berosik was told to get down on the ground, he struggled with the officers.
Eventually, Officer Watson subdued the Berosik brothers with pepper spray, and

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both brothers were arrested.

¶ That same night, Anderson, a detention sergeant, observed Berosik after his arrest.
Sergeant Anderson had seen Berosik previously when he was sober and when he was
intoxicated. She concluded that he was intoxicated. She described his condition on a
booking form.

¶ In September, 1997 Berosik was charged with Driving Under the Influence of
Alcohol (DUI), Resisting Arrest, and Habitual Offender Operating a Motor Vehicle.
Berosik pled guilty to the Habitual Offender charge and proceeded to trial on the
DUI and Resisting Arrest charges. In December, 1997 the State filed a Just notice,
signaling its intent to move for the admission at trial of evidence regarding an alleged
prior DUI in April, 1997. Berosik responded by filing a motion in limine, seeking to
exclude evidence regarding the prior DUI under Rule 404(b), M.R.Evid. In March,
1998, on the first day of Berosik's trial, the District Court granted Berosik's motion
in limine. However, at trial, the District Court admitted evidence that Berosik
contended was in violation of the motion in limine ruling, prompting Berosik to move
for a mistrial. The District Court denied the motion. Berosik appeals.

¶ 1. Whether the District Court erred in denying Berosik's motion for mistrial.

¶ Berosik argues that the District Court abused its discretion in denying his motion
for a mistrial. First, Berosik claims that the evidence admitted failed to satisfy the
standards that this Court has recognized for the admissibility of evidence under Rule
404(b), M.R.Evid. Second, Berosik argues that under State v. Partin (1997), 287
Mont. 12, 951 P.2d 1002, a mistrial is appropriate because the motion in limine was
violated, the evidence against him was weak and conflicting, and there is a
reasonable possibility that the Rule 404(b) evidence contributed to his conviction.

A. The State's questions to Berosik about the penalties he faced for a DUI.

¶ During its cross-examination of Berosik at trial, the State asked Berosik why he
identified himself to Officer Lavin as Kenneth. Berosik testified that he wanted to
avoid getting a ticket or being arrested for not having a license. However, Berosik
further testified that he was not worried about getting a DUI. The State asked
Berosik several times whether he was worried about the penalties he would face if
convicted of DUI. For example, the State asked, "You knew we were talking about

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years?" Berosik objected that the question was "asked and answered."

¶ Berosik argues that the State improperly signaled the jury that he is a "multiple D.
U.I. offender," violating the "spirit" of Rule 404(b), M.R.Evid. Berosik appears to
argue that because the State alluded to the possibility that Berosik faced years in jail
and on probation, some members of the jury would have inferred that this was not
Berosik's first DUI arrest because of their knowledge of the "escalating consequences
for D.U.I.[s]."

¶ The State responds that in asking Berosik about the substantial penalties for a
DUI, it properly inquired into Berosik's motives for lying about his identity to the
highway patrol officer and Berosik's "consciousness of his guilt." The State argues
further that Berosik was not prejudiced because on direct examination he testified
that he had been in jail for almost eight months before his trial, opening the door to
the admission of the consciousness of guilt evidence. The State also argues that
Berosik failed to object contemporaneously, thus waiving his objection.

¶ We conclude that Berosik has failed to preserve this issue for our review. Berosik
objected that the State's question was "asked and answered." However, Berosik did
not object on any of the grounds that he now claims as error on appeal. See Unified
Industries, Inc. v. Easley, 1998 MT 145, ¶ 15, 289 Mont. 255, ¶ 15, 961 P.2d 100, ¶ 15
(concluding "[t]he general rule in Montana is that this Court will not address either
an issue raised for the first time on appeal or a party's change in legal theory")
(citation omitted).

B. Admission of the HGN and breathalyzer evidence.

¶ At trial, Berosik testified that as a boy he was struck in his left eye by a double-
bladed axe. Berosik also testified that when he was sixteen, he received flash burns to
his eyes from welding. On cross-examination, the State asked Berosik whether he was
saying that the HGN test was not valid because of his eye problems, and Berosik
responded, "yes." The State asked whether Berosik had "that childhood injury and
those retinal burns in the month of April 1997." Berosik responded that he did. The
State requested a side bar and moved to introduce evidence regarding Berosik's
scores on the HGN and breathalyser tests during the alleged prior April, 1997 DUI.
The District Court concluded that Berosik had opened the door to that evidence in
testifying on direct examination about his eye condition. The State then asked

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Berosik whether it was true that "in a matter of months prior to this incident, an
HGN test was performed on you at night, showed you to be impaired, and the fact
that you were impaired was then confirmed by a breath test?" Berosik responded,
"Yes."

¶ Berosik argues that this evidence violated the District Court's grant of his motion
in limine. Berosik argues that the association between his April, 1997 HGN and
breathalyzer test results does not prove that his HGN test result in the present case
accurately reflected his alcohol consumption. Berosik also argues that admission of
the April, 1997 test results violated Rule 404(b), M.R.Evid., which provides in part
that "[e]vidence of other crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show action in conformity therewith. It may,
however, be admissible for other purposes . . . ." Berosik argues further that he did
not open the door to evidence of the April, 1997 tests; rather, the State elicited
comments from Berosik about the validity of the HGN test.

¶ The State responds that the motion in limine order barred the admission of
evidence of the April, 1997 police stop of Berosik only for the purpose of showing
that he then gave a false name and birth date to police. The State argues that the
evidence of Berosik's April, 1997 HGN and breathalyser tests was admissible to
impeach Berosik or to rebut his contention that the HGN test result in the present
case was invalid because of his eye injuries. Further, the State contends that evidence
of a prior crime or act is admissible under Rule 404(a)(1), M.R.Evid., when a
defendant opens the door with an assessment of his nature or character. Rule 404(a)
(1) provides in part that "[e]vidence of a person's character or a trait of character is
not admissible for the purpose of proving action in conformity therewith on a
particular occasion, except: . . . [e]vidence of a pertinent trait of character offered by
an accused . . . ."

¶ We conclude that the District Court abused its discretion in admitting the April,
1997 HGN and breathalyzer results. Even assuming arguendo that Berosik's
testimony opened the door to rebuttal of his criticism of the HGN test as applied to
him, the April, 1997 test results did not rebut Berosik's suggestion that he scored
highly on the HGN because of his eye injuries. The April, 1997 test results are not
inconsistent with Berosik's criticism of the HGN test as applied to him. Under
Berosik's critique of the HGN test, he could be expected to score significantly on the
HGN regardless whether he had consumed alcohol. Thus, the April, 1997 test results

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had at most a negligible probative value that was substantially outweighed by the
risk of "confusion of the issues." Rule 403, M.R.Evid. Having concluded that the
District Court abused its discretion, we must determine whether the District Court's
error prejudiced Berosik's substantive rights.

¶ We have previously concluded that

a judgment of conviction will not be reversed unless the error prejudiced or
tended to prejudice the substantive rights of the defendant. We have further
held that in criminal cases no judgment will be reversed for technical errors or
defects which do not affect the substantial rights of the defendant, and when
the record is sufficient to establish the guilt of the defendant, a new trial will
not be granted, even though there was error, unless it clearly appears that the
error complained of actually impaired the defendant's right to a fair trial.

State v. Huerta (1997), 285 Mont. 245, 251-52, 947 P.2d 483, 487 (citations omitted).
Further, § 46-20-701(2), MCA, provides that "[a]ny error, defect, irregularity, or variance
that does not affect substantial rights must be disregarded."

¶ We conclude that the District Court's error was harmless. Berosik has not shown
that the District Court's error prejudiced any of his substantive rights or that it
impaired his right to a fair trial. Even without the April, 1997 HGN and breathalyzer
test results, there was overwhelming evidence from which a jury could conclude that
Berosik was guilty, including testimony by the arresting officers that Berosik
appeared intoxicated and smelled of alcohol and by the booking Sergeant that
Berosik appeared intoxicated, Berosik's high HGN score, and Berosik's dubious
testimony that he drank two beers before seeing stockcar races, that he drank only
soft drinks during the stockcar races, and that he allowed himself one beer around
the time of the last race but was bumped, causing him to spill beer on himself. In
addition, Berosik admitted that he lied to police about his identity. Compare
Brodniak v. State (1989), 239 Mont. 110, 115, 779 P.2d 71, 74 (recognizing the
overwhelming evidence rule as one method "to ascertain whether there is a
reasonable possibility that the inadmissible evidence contributed to the verdict")
(citations omitted); State v. Graves (1995), 272 Mont. 451, 460, 901 P.2d 549, 555
(concluding district court's admission of police dispatcher's testimony about 911 call
was harmless error in light of other evidence that was properly admitted).

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C. Hearsay testimony of Kenneth.

¶ Officer Watson testified:

He [Kenneth Berosik] told me that he didn't want us to be able to identify him
because he knew that his brother had already used his name as his own, and if
we found out who he really was, we'd realize that he was going to get another
D.U.I., and one more would not be good for him.

¶ Berosik contends that the District Court abused its discretion in admitting this
testimony and that the testimony violated the District Court's grant of his motion in
limine. Berosik appears to argue that the motion in limine barred the admission of
any prior crime, that Kenneth's testimony was proof of another crime, and that it
violated Rule 404(b).

¶ The State responds that the District Court did not abuse its discretion in admitting
Officer Watson's testimony. The State argues that Officer Watson's testimony
rebutted Berosik's claim that he was not worried about a DUI and that the testimony
was admissible to show Berosik's consciousness of guilt.

¶ We conclude that Officer Watson's testimony did not violate the motion in limine.
The testimony regarding "another DUI" did not specifically reference the alleged
April, 1997 DUI. Moreover, Berosik is mistaken in his contention that the District
Court's grant of his motion in limine barred the admission of prior crime evidence
for any purpose. As previously discussed, Berosik's motion in limine requested that
no mention be made at trial of the alleged April, 1997 DUI incident. In granting the
motion in limine, the District Court concluded that whether Berosik had used his
brother's name when he was arrested in April, 1997 "doesn't make it more probable
that that's what he was doing this time" and that his alleged prior use of his brother's
name had only "very marginal" relevance. The District Court determined that the
State could not use the alleged April, 1997 DUI incident to show that Berosik had
previously used his brother's name.

¶ We note that Berosik's counsel then asked, "I take it, then, our intent is we will not
talk about priors in any fashion?" The District Court responded, "that's my

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impression." However, the record reveals that Berosik's counsel again attempted to
articulate the District Court's ruling, stating "just so we understand the general
philosophy is 'we'll try it with a misdemeanor DUI with no prior.' " The State agreed
but pointed out that Berosik could not "try to 'BS' the jury with purity." The District
Court then commented that if Berosik opened the door to prior crimes evidence, the
District Court expected that the State would first talk with Berosik's counsel and the
District Court. Thus, Berosik's contention that the motion in limine barred mention
of prior crimes for any purpose is not plausible. The record clearly establishes that
the parties contemplated circumstances in which prior crimes could be admitted,
that the District Court explained the specific grounds on which it had granted the
motion in limine, and that Berosik's motion in limine addressed only the alleged
April, 1997 DUI.

¶ We hold that Officer Watson's testimony was properly admitted for the distinct
purpose of showing Berosik's consciousness of guilt. Rule 404(b), M.R.Evid. does not
apply to evidence of consciousness of guilt. We have previously concluded:

It should be first noted that the admissibility test and the procedural
requirements of State v. Just do not apply to evidence establishing
consciousness of guilt regarding the crime with which the defendant is
charged. We have said numerous times that testimony showing or tending to
show flight or concealment by the defendant may be taken into consideration
by a jury in determining whether the defendant is guilty of the offense
charged. . . . The evidence is relevant because it tends to show consciousness
of guilt and therefore tends to prove the commission of the crime charged and
the defendant's responsibility for it. Rule 404(b), M.R.Evid., as to other
crimes, does not apply.

State v. Moore (1992), 254 Mont. 241, 245, 836 P.2d 604, 607. In the present case, Officer
Watson's testimony tended to show Berosik's consciousness of his guilt and thus tended to
prove his commission of the crime with which he was charged. Moreover, we conclude
that Berosik was not prejudiced by Officer Watson's testimony because of the previously
discussed overwhelming independent evidence from which a jury could reasonably
conclude that he was guilty.

¶ Finally, we consider whether the District Court erred in denying Berosik's motion
for a mistrial. We review a district court's denial of a motion for mistrial to

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determine whether the district court abused its discretion. See State v. Partin (1997),
287 Mont. 12, 17-18, 951 P.2d 1002, 1005. The Court in Partin determined that "[t]he
general rule is that, where there is a reasonable possibility that inadmissible evidence
might have contributed to the conviction, a mistrial is appropriate." Partin, 287
Mont. at 18, 951 P.2d at 1005.

¶ In the present case, we need only consider whether the District Court's admission
of the HGN and breathalyzer evidence denied Berosik "a fair and impartial trial."
Partin, 287 Mont. at 16, 951 P.2d at 1004. Berosik's other grounds for a mistrial are
without merit: as previously discussed, Rule 404(b), M.R.Evid. does not apply to
Officer Watson's statement and Berosik failed to preserve his objection to the State's
questions about the penalties for DUIs.

¶ We must determine whether there is a reasonable possibility that the evidence of
Berosik's April, 1997 HGN and breathalyzer test results contributed to Berosik's
conviction. See Partin, 287 Mont. at 18, 951 P.2d at 1005 (concluding "where there is
a reasonable possibility that inadmissible evidence might have contributed to the
conviction, a mistrial is appropriate"). As previously discussed, there was
overwhelming independent evidence from which a jury could reasonably conclude
that Berosik was guilty. Compare Partin, 287 Mont. at 21, 951 P.2d at 1007
(concluding "evidence against Partin was weak and conflicting[:] . . . the stronger the
evidence against the defendant, the less likely it is that a reference to other charges or
a prior arrest will have a prejudicial effect"). In light of the overwhelming
independent evidence of Berosik's guilt, we conclude that there is not a reasonable
possibility that the admission of the HGN and breathalyzer evidence contributed to
Berosik's conviction. We hold that the District Court did not abuse its discretion in
denying Berosik's motion for a mistrial.

¶ 2. Whether the District Court abused its discretion in admitting a police booking
form.

¶ Berosik argues that the booking form prepared by Sergeant Anderson was double
hearsay. Berosik argues further that the booking form is an investigative report that
falls outside the exception to the hearsay rule under Rule 803(8), M.R.Evid., that the
booking form met no exception to the hearsay rule, and that admission of the
booking form was unnecessary because Sergeant Anderson was available to testify.
Berosik cites this Court's decision in State v. Zackuse (1992), 253 Mont. 305, 833 P.2d

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143.

¶ The State responds that the booking form was not double hearsay and that it was
admissible as the recorded present sense impressions of Sergeant Anderson. The
State argues further that even if the District Court erred in admitting the booking
form, the error was harmless because the booking form was merely cumulative of
other witness' testimony.

¶ The District Court admitted the booking form as a recorded present sense
impression under Rule 803(1), M.R.Evid. Rule 803(1), M.R.Evid., provides:

The following are not excluded by the hearsay rule, even though the declarant
is available as a witness:

(1) Present sense impression. A statement describing or explaining an event or
condition made while the declarant was perceiving the event or condition, or
immediately thereafter.

Rule 803(1), M.R.Evid.

¶ In City of Helena v. Hoy (1991), 248 Mont. 128, 809 P.2d 1255, a police officer took
handwritten notes on a printout card, recording the calibration and results of a
breathalyzer test. The Court in Hoy determined that the officer's testimony
regarding her handwritten notes was admissible as a present sense impression,
concluding that "[t]he numbers Officer Badger recorded on the printout card were a
written assertion describing a condition, namely appellant's blood alcohol content
results, made at the time she was perceiving the event or condition." Hoy, 248 Mont.
at 131, 809 P.2d at 1257.

¶ We note in the present case that the booking form was not "double hearsay;" it is
not a combined statement or hearsay within hearsay but rather a form with Sergeant
Anderson's observations of Berosik. Further, Berosik's reliance on Zackuse is simply
misplaced. In Zackuse, the Court concluded that the district court did not abuse its
discretion by admitting a State Crime Lab Form as "evidence of [the investigating
officer's] receipt of the drug evidence from the State Crime Lab." Zackuse, 253
Mont. at 309, 833 P.2d at 145.

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¶ In the present case, the record establishes that Sergeant Anderson's notes on the
booking form were based on her personal observations of Berosik. The record
appears to indicate and Berosik does not dispute that Sergeant Anderson recorded
her observations while she observed Berosik or "immediately thereafter." Rule 803
(1), M.R.Evid. Moreover, when the State moved to admit the booking form, Sergeant
Anderson had already testified about Berosik's condition when she observed him:

Q. Do you remember what your impression was of [Berosik's] condition?

A. Yeah. My impression was he was intoxicated.

Following the District Court's admission of the booking form, Berosik conducted a full
cross-examination of Sergeant Anderson. We hold that the District Court did not abuse its
discretion in admitting the booking form as a recorded present sense impression. Because
this holding is dispositive, we do not address Berosik's other objections to the admission
of the booking form.

¶ The judgment of the District Court is affirmed.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ TERRY N. TRIEWEILER

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ JIM REGNIER

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