State v. Nobach

No. 00-701

IN THE SUPREME COURT OF THE STATE OF MONTANA

2002 MT 91

STATE OF MONTANA,

Plaintiff and Respondent,

v.

DAVID PAUL NOBACH,

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:

For Appellant:

Lane K. Bennett, Attorney at Law, Kalispell, Montana

For Respondent:

Hon. Mike McGrath, Attorney General; Jennifer M. Anders,
Assistant Attorney General, Stephanie Shanler, Legal Intern,
Helena, Montana

Thomas J. Esch, Flathead County Attorney; Eric Hummel
Deputy Flathead County Attorney, Kalispell, Montana

Submitted on Briefs: November 8, 2001

Decided: May 7, 2002
Filed:

__________________________________________
Clerk
Chief Justice Karla M. Gray delivered the Opinion of the Court.

¶1 David Paul Nobach appeals from the Judgment and Sentence entered by the Eleventh

Judicial District Court, Flathead County, on a jury verdict convicting him of the

misdemeanor offense of driving under the influence of drugs (DUID). We affirm.

¶2 The sole issue on appeal is whether the District Court

committed reversible error in admitting opinion testimony from a

Montana Highway Patrol officer regarding the effect of prescription

medications on Nobach's driving ability.
BACKGROUND

¶3 Most of the facts in the underlying case are undisputed. On

September 14, 1999, Nobach, who is trained as a pharmacist but

worked as a waiter, left his place of employment at Woods Bay,

Montana, after becoming ill at work. He set out to drive home to

Kalispell, a distance of about 25 miles. Nobach recalls driving

the approximately five miles to Bigfork, but does not recall

leaving there. He regularly took--and had taken that day--

prescription and over-the-counter medications for his chronic
pancreatis and low blood pressure caused by atrial fibrillation.

¶4 At about 6:30 p.m., Nobach was driving his vehicle erratically

on Montana Highway 35, followed by six or eight other vehicles,

when Flathead County Sheriff's Deputy Rod Myers noticed the vehicle

while traveling in the opposite direction. Myers turned around to

follow Nobach and eventually positioned his patrol vehicle directly

behind Nobach's vehicle. Myers followed Nobach for approximately

three or four miles and observed Nobach's vehicle swerving,

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weaving, making wide turns and forcing other vehicles to take

evasive action. Nobach's vehicle eventually drove off the road and

rolled over onto its top. In helping Nobach from his vehicle,

Myers noticed Nobach was extremely pale, disoriented and sweaty.

In addition, Nobach seemed subdued, nonchalant, sleepy and slow.

Paula Gill, a Montana Department of Justice criminal investigator,

happened upon the accident scene; her observations of Nobach were

consistent with those of Myers.

¶5 Montana Highway Patrol Officer Michael Brooks responded to the

accident scene and took over the investigation. A portable breath

alcohol test registered no alcohol in Nobach's system, which caused

Brooks to conclude that Nobach was under the influence of drugs

because of his physical condition. That is, Brooks believed Nobach

was "under the influence of something. I didn't know what it was

at the time." Brooks thought Nobach was under the influence of some

sort of depressant because his pupils were constricted.
¶6 During a pat-down search, Brooks removed approximately 20

pills from Nobach's pants pocket. He arrested Nobach for DUID and

took Nobach to a local hospital for a blood test. The toxicology

report on Nobach's blood sample ultimately indicated prescription

medications in Nobach's blood, but no nonprescribed or illegal

medications or drugs.

¶7 The State of Montana charged Nobach with misdemeanor DUID.

Myers, Brooks, Gill, a pharmacist at Kalispell Regional Medical

Center, and Nobach testified at the jury trial. Exhibits,

including the toxicology report on Nobach's blood sample, were

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admitted into evidence. The jury convicted Nobach of DUID and,

thereafter, the District Court sentenced him and entered judgment.

Nobach appeals.

DISCUSSION

¶8 Did the District Court commit reversible error in admitting
Brooks' opinion testimony regarding the effect of prescription
medications on Nobach's driving ability?

¶9 On direct examination, Brooks testified he had received

training about the effects drugs and alcohol have on people and

their driving behavior. Specifically, he testified that a person's

demeanor and behavior vary depending on what type of drug(s) they

have ingested. The symptoms exhibited by persons under the

influence of narcotic drugs such as two of the medications noted in

the toxicology report, according to Brooks, were those he noticed

in Nobach, namely, "very pale, sweaty; his speech was slurred;

very slow to answer my questions." On further inquiry, Brooks

testified he became aware of Nobach's driving on the evening in

question through other people; he had not observed Nobach driving.

When the prosecution asked Brooks his opinion about whether drugs

affected Nobach's ability to drive, Nobach's counsel objected on

the basis of lack of foundation--on a pharmacological basis--for an

expert opinion by Brooks regarding the effect the drugs mentioned

in the toxicology report would have had on Nobach. He also

objected that the opinion would go to the ultimate issue of fact

for the jury.
¶10 The District Court overruled the objection without determining

specifically whether Brooks' opinion would be an expert opinion or

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not. It merely stated that "opinions can be given, and the fact

that it's an ultimate issue doesn't make it inadmissible. . . . I

think your objection goes to the weight [the opinion] should be

given, not its admissibility." Brooks then opined, based on his

training and experience, that Nobach's ability to drive safely was

diminished as a result of his consumption of drugs.

¶11 On cross-examination, Nobach's counsel asked Brooks whether it

was possible that the levels of various drugs in Nobach's blood, as

contained in the toxicology report, were so low that they would

have no effect. Brooks replied "I guess anything's possible, but

I'm not sure. Like I said, I'm not a pharmacist and I don't work

in the forensic lab, so I don't know what those levels mean."

Later, on redirect, the prosecution inquired of Brooks regarding

the effects two or more depressants can have on one another.

Nobach again objected on lack of foundation grounds, but the

District Court overruled the objection based on Brooks' training.

Brooks then opined that the effect of two depressants is that

"[t]hey're multiplied;" in other words, one plus one could equal

four or five.
¶12 On appeal, Nobach asserts that the District Court abused its

discretion in admitting expert testimony without sufficient

foundation, and that the error was prejudicial and requires

reversal. The State contends Brooks' testimony was proper lay

opinion or, in the alternative, that Brooks was properly qualified

as an expert. In any event, according to the State, any error by

the District Court in admitting Brooks' opinion that Nobach's

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ability to drive safely was diminished by his consumption of drugs

was harmless.

¶13 We review a district court's evidentiary rulings to determine

whether the court abused its discretion. State v. Southern, 1999

MT 94, ¶ 48, 249 Mont. 225, ¶ 48, 980 P.2d 3, ¶ 48 (citations

omitted). If error occurred, we determine whether it was

structural error, which results in automatic reversal, or trial

error, which may or may not be reversible depending on whether the

error was prejudicial. See State v. Van Kirk, 2001 MT 184, ¶ 41,

306 Mont. 215, ¶ 41, 32 P.3d 735, ¶ 41.
a. Lay or Expert Opinion Testimony

¶14 Under the Montana Rules of Evidence, both lay opinion

testimony and expert opinion testimony may be admissible in

evidence. Specifically, Rule 701, M.R.Evid., authorizes a lay

witness to give an opinion rationally based on the person's

perception and helpful to a clear understanding of the person's

testimony or the determination of a fact in issue. Rule 702,

M.R.Evid., on the other hand, allows the admission of opinion

testimony about "scientific, technical, or other specialized

knowledge" if the opinion will help the jury to understand the

evidence or determine a fact in issue and the witness has been

"qualified as an expert by knowledge, skill, experience, training,

or education[.]" Our initial focus, therefore, is on whether

Brooks' testimony constitutes a lay opinion or an expert opinion.

¶15 In support of its position that the District Court properly

admitted Brooks' testimony as lay opinion, the State advances State

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v. Carter (1997), 285 Mont. 449, 948 P.2d 1173, and State v.

Bradley (1993), 262 Mont. 194, 864 P.2d 787, for the proposition

that a lay witness may give an opinion regarding intoxication based

on the witness' personal observations. In Carter, a lay witness

was permitted to testify at trial that, based on his personal

observations of the defendant, the defendant was intoxicated. We

upheld the trial court's admission of the opinion under Rule 701,

M.R.Evid., concluding it was rationally based on the lay witness'

visual observation of the defendant for "quite some time," and his

testimony that he knew the objective signs of intoxication and had

"much experience" being around people in varying states of

intoxication. Carter, 262 Mont. at 456, 948 P.2d at 1177.

Similarly, we concluded in Bradley that lay opinion testimony that

the defendant was intoxicated, based on the three lay witnesses'

observations of the defendant after the accident at issue, met the

requirements of Rule 701, M.R.Evid. We expressly held that the

rule "does not preclude lay witnesses from testifying to a person's

state of intoxication." Bradley, 262 Mont. at 198, 864 P.2d at

789. The law aside, the fact is that most adults are sufficiently

experienced with people who have been drinking to offer an opinion

that a person is, in fact, intoxicated from alcohol based on their

personal observations.
¶16 The State contends Brooks' opinion that Nobach was under the

influence of alcohol or drugs was based on his observations at the

scene and, consequently, is analogous to the lay opinions accepted

in Carter and Bradley, under Rule 701, M.R.Evid., as proper lay

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opinion testimony. At the outset, we observe that the portable

breath test Brooks performed at the accident scene ruled out

alcohol as a factor in this case and it was only at that point that

Brooks believed Nobach was under the influence of drugs. Thus, the

type of "intoxication" about which the lay witnesses in Carter and

Bradley opined was not at issue here.

¶17 Moreover, we are not persuaded that lay people are

sufficiently knowledgeable about common symptoms of drug

consumption, much less the effects of drug consumption on a

person's ability to drive a motor vehicle safely, to offer lay

opinion testimony on those subjects, based on personal

observations, under Rule 701. In addition, Brooks' opinions that

Nobach's ability to drive safely was diminished by the consumption

of drugs and as to the effect of two depressants purportedly were

based on his training and experience, subjects which generally

relate to expert opinion testimony. See Rule 702, M.R.Evid. Under

the facts before us here, a lay person could as easily have

believed--based on his or her personal observations--that Nobach

was merely ill, as he was when he left his place of employment at

Woods Bay. Finally, Brooks' opinion that Nobach's ability to drive

safely was diminished by consumption of drugs is substantially

unlike the lay opinions in Carter and Bradley, which did not go to

the effect of the apparent intoxication on the person's ability to

drive. For all these reasons, we conclude that Brooks' opinion

testimony was not qualitatively similar to the lay opinion

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testimony we held properly admitted under Rule 701, M.R.Evid., in

Carter and Bradley.

¶18 The State also advances Hart-Anderson v. Hauck (1989), 239

Mont. 444, 781 P.2d 1116, for the proposition that a law

enforcement officer may give an opinion about the cause of an

accident and, as a consequence, that the prosecution in the present

case was not required to qualify Brooks as an expert under Rule

702, M.R.Evid. In Hart-Anderson, a law enforcement officer

testified at trial, over a lack of foundation objection, that the

cause of an accident was driving too fast for existing road

conditions. There, the officer--while not an eyewitness to the

accident--had investigated hundreds of automobile accidents during

his 14-year career; he also had interviewed the parties involved in

the accident and made observations at the scene of the accident,

including those regarding icy road conditions. See Hart-Anderson,

239 Mont. at 448, 781 P.2d at 1118. We concluded the officer's

testimony could assist the trier of fact on the causation issue;

the officer had "extensive experience in these types of

investigations and an adequate foundation was presented for his

testimony." Hart-Anderson, 239 Mont. at 449, 781 P.2d at 1119.

While we did not specifically address either Rule 701 or Rule 702,

M.R.Evid., in Hart-Anderson, our reliance on the officer's training

and experience, together with our statement that an adequate

foundation was presented, at the very least suggests that we had in

mind the foundational requirement of Rule 702 that an expert be

qualified by "knowledge, skill, experience, training, or

9
education[.]" Nothing in Rule 701, M.R.Evid., or our cases

thereunder, suggests the necessity or propriety of such a focus in

determining whether a lay opinion may be admitted.

¶19 The State also posits that State v. Gregoroff (1997), 287

Mont. 1, 951 P.2d 578, is similar to the present case. Its

reliance on Gregoroff is puzzling, since the case supports Nobach's

position rather than its own. There, the officer was not presented

as an expert witness but offered an opinion that the driver was

under the influence of alcohol to an extent that it diminished his

ability to drive his truck safely; the trial court admitted the

testimony over a lack of foundation objection. The officer's

training and experience encompassed 12 weeks' training at the

Highway Patrol Academy, including special training in DUI

investigation; 8 years' experience as a Highway Patrol Officer; 2

separate 2-week-long traffic investigation courses; an accident

reconstruction course which resulted in recognition as an "accident

reconstructionist;" a course on instructing on DUI detection;

teaching various law enforcement entities on the subject;

participation in over 100 DUI arrests; and investigation of over

200 traffic accidents. Gregoroff, 287 Mont. at 4, 951 P.2d at 580.

On appeal, we stated the officer's training and experience clearly

qualified her as an expert in accident investigation and

reconstruction. We went on to state that, under Rule 702,

M.R.Evid., an expert witness can assist the trier of fact by giving

an opinion based on her "specialized knowledge," and to hold that

the officer was qualified as an expert to express her opinions

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regarding the cause of the accident. Gregoroff, 287 Mont. at 4-5,

951 P.2d at 580-81.

¶20 Gregoroff clearly "fills in the blanks" we left in Hart-

Anderson by clarifying that a law enforcement officer can offer an

expert opinion about the cause of an accident so long as sufficient

foundation is presented, as required by Rule 702, M.R.Evid. The

officer's expert opinion in Gregoroff is strikingly similar to that

offered by Brooks in the present case, namely, that Nobach's

ability to safely drive his vehicle was diminished by his

consumption of drugs.
¶21 Nobach compares Brooks' opinion testimony to the testimony of

a law enforcement officer regarding the horizontal gaze nystagmus

(HGN) test in Hulse v. State, Dept. of Justice, Motor Vehicle Div.,

1998 MT 108, 289 Mont. 1, 961 P.2d 75. There, we held that, before

a law enforcement officer may testify regarding a correlation

between alcohol consumption and HGN, the State must present

foundation evidence establishing that the officer has special

training or education qualifying him as an expert on the scientific

basis for the HGN test. Hulse, ¶ 70. Nobach maintains, and we

agree, that foundation as to scientific training or education also

is required here.

¶22 We conclude Brooks' opinion that Nobach's ability to drive

safely was diminished as a result of his consumption of drugs was

expert opinion testimony requiring an adequate foundation pursuant

to Rule 702, M.R.Evid.

b. Foundation

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¶23 The State argues that Brooks' experience and training, like

the officer's in Gregoroff, provides a sufficient foundation for

the admission of his expert opinion that Nobach's ability to drive

safely was impaired by consumption of drugs and as to the effects

of several prescription medications interacting with each other.

We disagree.

¶24 Brooks testified that he had been employed by the Montana

Highway Patrol for three and one-half years. During that period,

his main duties were "just traffic regulation," although he also

testified that he does traffic accidents and arrests for the

offense of driving under the influence of alcohol. Prior to

joining the Highway Patrol, he went to a military academy in San

Antonio, Texas, for two and one-half months, served three years as

a military police officer in the Navy, and attended the Highway

Patrol Academy in Helena, Montana. He stated generally that he had

training at the Highway Patrol Academy, and also three days of

specialized training in Missoula, in determining whether a person

is under the influence of drugs.
¶25 It is clear that Brooks' training and experience with regard

to the effects of drug consumption--particularly the consumption of

prescription medications--is substantially less than the Gregoroff

officer's training and experience on the effects of alcohol

ingestion. Brooks did not testify regarding the extent of any

training he received relating to determining the influence of drugs

at either the Highway Patrol Academy or the military academy.

Moreover, he testified affirmatively that a lot of the three days

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of drug-related training he received centered around common illegal

or illicit drugs like marijuana, methamphetamine, speed and

cocaine. Brooks also admitted his lack of familiarity with some of

the prescription drugs Nobach took regularly and also with some of

those which reflected in the toxicology report on Nobach's blood

sample.

¶26 We hold the foundation regarding Brooks' training and

experience in this case is insufficient to demonstrate the special

training or education and adequate knowledge on which to base an

expert opinion as required under Rule 702, M.R.Evid. See Southern,

¶ 49 (citations omitted). Because Brooks' experience and training

did not provide a sufficient foundation for the admission of his

expert opinion, the District Court abused its discretion in

admitting that testimony.
c. Harmless or Reversible Error

¶27 The final portion of our analysis requires a determination of

whether the error in admitting Brooks' expert testimony was

harmless, as the State contends, or reversible, as Nobach argues.

We recently addressed and clarified our approach to harmless or

reversible error. The first step in the analysis is to determine

whether the claimed error is categorized as "structural" error or

"trial" error. Structural error is error that affects the

framework within which a trial proceeds; it typically is of

constitutional dimension, precedes the trial, and undermines the

fairness of the entire trial proceeding. Van Kirk, ¶ 38 (citations

omitted). Trial error, on the other hand, typically occurs during

13
the presentation of a case to the jury and includes improper

admission of evidence. See Van Kirk, ¶¶ 40, 48.

¶28 Based on these definitions of structural error and trial

error, the erroneous admission of Brooks' expert testimony is

clearly trial error. As such, its admission does not automatically

constitute grounds for reversal but is amenable to qualitative

assessment under our harmless error statute, § 46-20-701(1), MCA,

regarding its prejudicial impact relative to the other evidence

introduced at trial. See Van Kirk, ¶ 40. Specifically, we review

whether the finder of fact was presented with admissible evidence

which proved the same facts as did the tainted evidence and, if so,

whether the tainted evidence would have contributed to the

conviction qualitatively by comparison. Van Kirk, ¶ 47.
¶29 On the record before us, the jury was presented with

admissible evidence that proved the same facts as Brooks' disputed

testimony on whether drugs affected Nobach's ability to drive. The

State's expert witness, pharmacist Gary Morrison, identified--one

by one--the narcotic and analgesic drugs in the toxicology report

on Nobach's blood sample and discussed the negative side effects of

those drugs. He testified that methadone, a powerful pain

reliever, causes drowsiness and slows reaction time and reflexes.

Hydrocodone, another pain reliever, also dulls reflexes.

Phenobarbital, a barbituate, has drowsiness as a side effect. The

toxicology report also indicated the presence in Nobach's blood of

Ambien (a sleeping pill), caffeine, and acetaminophen (a Tylenol

ingredient). Morrison testified without objection that this

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combination of drugs in a person's body would cause drowsiness,

cloud judgment and slow reaction time. He further testified he

would not advise a person to operate a motor vehicle while taking

the drugs contained in the toxicology report and would expect that

a trained pharmacist like Nobach would be aware of the effects of

taking such drugs. In addition, although Nobach's position at

trial was that his reaction to medication was not the cause of his

accident, he admitted having stated under oath prior to trial that

he believed the accident was caused by an adverse reaction to his

medication.
¶30 The above-described expert testimony of pharmacist Morrison

covered in greater detail and with greater clarity the same subject

matter as the erroneously-admitted testimony of Brooks. Moreover,

Morrison's testimony was admitted without objection. Particularly

since Brooks admitted his own lack of familiarity with the meaning

of the levels of the various drugs in Nobach's blood, we conclude

that under the "cumulative evidence" test endorsed in Van Kirk, ¶

43, Brooks' erroneously-admitted testimony--considered

qualitatively in comparison to the other evidence presented--would

not have contributed to Nobach's conviction.

¶31 We hold that while the District Court abused its discretion in

admitting expert opinion testimony from Brooks regarding the effect

of the prescription medications on Nobach's driving ability, the

error was harmless and is not grounds for reversal.

¶32 Affirmed.

/S/ KARLA M. GRAY

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We concur:

/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ JIM REGNIER
/S/ JIM RICE

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