December 11 2007
DA 06-0526
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 330N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
ADRIENNE LECOURE,
Defendant and Appellant.
APPEAL FROM: District Court of the Twenty-First Judicial District,
In and For the County of Ravalli, Cause No. DC-05-227
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Steven N. Eschenbacher, Office of the State Public Defender, Hamilton,
Montana
For Appellee:
Hon. Mike McGrath, Attorney General; Micheal S. Wellenstein, Assistant
Attorney General, Helena, Montana
George Corn, Ravalli County Attorney; T. Geoff Mahar, Deputy County
Attorney, Hamilton, Montana
Submitted on Briefs: October 17, 2007
Decided: December 11, 2007
Filed:
__________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2003, the following memorandum decision shall not be cited
as precedent. It shall be filed as a public document with the Clerk of the Supreme Court and
its case title, Supreme Court 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 Appellant Adrienne Lecoure (Lecoure) appeals the District Court’s order allowing
evidence of her driving under the influence of alcohol to be presented to the jury at her trial
for Criminal Endangerment when Lecoure had already pled guilty to § 61-8-401, MCA.
Lecoure argued that allowing such evidence to be admitted violated her right against double
jeopardy. We affirm.
¶3 On December 15, 2005, after drinking at a friend’s house in Stevensville, Lecoure
tried to drive herself home to Hamilton on Highway 93 around 7:15 pm. Soon after, the
Ravalli County Sheriff’s Department received reports from at least two other drivers on 93
who reported a car crossing the center line into oncoming traffic, forcing vehicles off the
road and onto the dirt shoulder to avoid the car. A Sheriff’s deputy located the vehicle and
driver, investigated the situation, and arrested Lecoure, the driver, for DUI. On December
21, 2005, the State charged Lecoure by Information with Criminal Endangerment, a felony,
in violation of § 45-5-207(1), MCA, and first offense Driving Under the Influence of
Alcohol and/or Drugs (DUI), a misdemeanor, in violation of § 61-8-401, MCA.
¶4 On March 1, 2006, Lecoure pled guilty to DUI and the District Court accepted her
plea. On March 28, 2006, Lecoure filed a motion to dismiss the remaining charge of
Criminal Endangerment, arguing that the State could not prove the requisite mental state of
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“knowingly” for the offense of Criminal Endangerment. In its response, the State argued
that both charges were appropriate under § 46-11-410(1), MCA, that the required mental
state may be inferred from the acts of Lecoure, and that the question of her mental state was
one for the jury, not the court. In her reply brief, Lecoure argued that the prosecution was
abusing its discretion by bringing charges greater in number than could reasonably be
supported by the evidence. At no point did Lecoure argue that the Criminal Endangerment
charge must be dismissed based on double jeopardy. On April 20, 2006, the District Court
denied Lecoure’s motion to dismiss.
¶5 On May 23, 2006, the State filed what it called a motion in limine that was in essence
a statement of intent to present evidence of Lecoure’s conduct, including her behaviors,
erratic driving, and swerving into oncoming traffic. The State requested a District Court
order clarifying that the evidence could be admitted at Lecoure’s Criminal Endangerment
trial. The State argued that Lecoure’s actions were admissible under § 26-1-103, MCA, the
“transaction rule,” and under M. R. Evid. 401. In her response, Lecoure argued that the
introduction of evidence of her driving at her trial for Criminal Endangerment violated § 46-
11-503, MCA, and should be barred by the protections against double jeopardy. At a hearing
on the motion in limine, the court stated, “I’ve read the briefs and I just don’t think it’s
possible to keep out the evidence of intoxication and the effect on her driving and driving
behavior. It’s all so tied into the criminal endangerment charge, I just don’t see a way to
effectively separate that.” The court granted the motion allowing the State to present
evidence of her driving behavior.
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¶6 At trial, Lecoure’s strategy was to present to the jury the fact that she had pled to DUI
and was already being held responsible for her actions, the same actions that constituted the
Criminal Endangerment charge, and that “enough was enough.”
¶7 Before closing arguments, the State proposed another jury instruction of the lesser
included offense of Negligent Endangerment, and Lecoure did not object. The jury
ultimately found Lecoure not guilty of Criminal Endangerment and guilty of Negligent
Endangerment.
¶8 The district courts have discretion over evidentiary issues. This court reviews a
district court’s evidentiary ruling for an abuse of discretion. “The test for [an] abuse of
discretion is whether the trial court acted arbitrarily without employment of conscientious
judgment or exceeded the bounds of reason resulting in substantial injustice.” In re
Marriage of Dennison, 2006 MT 56, ¶ 13, 331 Mont. 315, ¶ 13, 132 P.3d 535, ¶ 13.
¶9 Double jeopardy is a bar to prosecution, rather than an evidentiary rule. State v. Cech,
2007 MT 184, ¶ 13, 338 Mont. 330, ¶ 13, 167 P.3d 389, ¶ 13; City of Helena v. Danicheck,
277 Mont. 461, 463, 922 P.2d 1170, 1172 (1996). Lecoure failed to raise double jeopardy as
an argument to dismiss the Criminal Endangerment charge. She raised double jeopardy as a
reason to exclude evidence of her conduct and driving. There is no reason to exclude
evidence based on double jeopardy.
¶10 The District Court properly found that evidence of Lecoure’s driving was “tied into”
the Criminal Endangerment charge and, therefore, admissible in the Criminal Endangerment
trial. Pursuant to §§ 26-10-401 to 402, MCA, the testimony of the witnesses who feared for
their lives on Highway 93 while watching Lecoure’s driving behavior has a tendency to
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make more probable the fact that Lecoure engaged in conduct that created a substantial risk
of death or serious bodily injury. Lecoure’s initial denial and subsequent admission to the
Deputy that she had drank numerous cocktails before driving home is relevant to prove the
fact that she knowingly engaged in that conduct and was aware of the high probability that
such risk would result from that conduct. Therefore, the District Court’s evidentiary ruling is
correct.
¶11 We have determined to decide this case pursuant to Section 1, Paragraph 3(d) of our
1996 Internal Operating Rules, as amended in 2003, which provides for memorandum
opinions. It is manifest on the face of the briefs and the record before us that the appeal is
without merit because the Appellant failed to properly raise the double jeopardy issue here or
in the District Court.
¶12 Affirmed.
/S/ JOHN WARNER
We Concur:
/S/ KARLA M. GRAY
/S/ JAMES C. NELSON
/S/ JIM RICE
/S/ BRIAN MORRIS
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