State v. Cybulski

March 11 2009

DA 07-0733

IN THE SUPREME COURT OF THE STATE OF MONTANA

2009 MT 70

STATE OF MONTANA,

Plaintiff and Appellee,

v.

BEVERLY SAMPSON CYBULSKI,

Defendant and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,
In and For the County of Custer, Cause Nos. DC 2007-06 and DC 2007-08
Honorable Joe L. Hegel, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

A. Lance Tonn, Lucas and Tonn, Miles City, Montana

For Appellee:

Hon. Steve Bullock, Montana Attorney General, Sheri K. Sprigg,
Assistant Attorney General, Helena, Montana

Wyatt A. Glade, Custer County Attorney, Miles City, Montana

Submitted on Briefs: February 4, 2009

Decided: March 10, 2009

Filed:

__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.

¶1 Beverly Cybulski appeals her conviction in the District Court for the Sixteenth

Judicial District, Custer County, on the charges of Criminal Endangerment and Driving

Under the Influence of Alcohol (DUI). We affirm.

¶2 Cybulski raised ten issues on appeal which we have restated as follows:

¶3 1. Whether the District Court erred in denying Cybulski’s motion to suppress

evidence based on an allegedly illegal arrest.

¶4 2. Whether the District Court erred in denying Cybulski’s motion to dismiss the

DUI charge on speedy trial grounds.

¶5 3. Whether the District Court abused it discretion in instructing the jury on the

definition of Criminal Endangerment.

¶6 4. Whether the District Court erred in denying Cybulski’s motion to dismiss the

Criminal Endangerment charge for insufficient evidence at the close of the State’s

case-in-chief.

¶7 5. Whether the District Court erred in granting the State’s motion for joinder of

the DUI and Criminal Endangerment charges.

¶8 6. Whether the District Court erred in denying Cybulski’s motion to dismiss the

Criminal Endangerment charge based on alleged prosecutorial misconduct.

¶9 7. Whether the District Court abused its discretion in admitting the patrol car

video taken by the officer who stopped Cybulski and removed her from her vehicle.

¶10 8. Whether the District Court abused its discretion in admitting the transcript of

the 911 calls.

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¶11 9. Whether the District Court abused its discretion in admitting the video of

Cybulski undergoing sobriety testing at the detention center, with a portion of the video

muted.

¶12 10. Whether the District Court erred in denying Cybulski’s motion to dismiss the

Criminal Endangerment charge on double jeopardy grounds.

¶13 M. R. App. P. 12(1)f. requires that parties cite to relevant authorities and statutes

in support of their arguments on appeal. In this case, Cybulski failed to cite to any

statutes or caselaw in support of her arguments regarding joinder, prosecutorial

misconduct or double jeopardy (Issues 5, 6 and 10). We have repeatedly held that it is

not this Court’s obligation to conduct legal research on behalf of a party or to develop

legal analysis that might support a party’s position. State v. Torgerson, 2008 MT 303,

¶ 36, 345 Mont. 532, 192 P.3d 695.

¶14 In addition, instead of setting forth her legal arguments in her brief on appeal

regarding her joinder and double jeopardy claims (Issues 5 and 10), Cybulski noted that

she intended to rely upon the arguments on these issues made in her briefs before the

District Court. This is entirely improper. “The mere reference to arguments and

authorities presented in district court proceedings is no substitute for developing and

presenting appellate arguments.” State v. Ferguson, 2005 MT 343, ¶ 41, 330 Mont. 103,

126 P.3d 463. And, as the State points out, allowing Cybulski to incorporate trial

arguments into appellate briefs by reference seriously undermines the word and page

limitations in M. R. App. P. 11(4).

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¶15 Consequently, because of Cybulski’s inadequate briefing on Issues 5, 6 and 10, we

decline to consider her arguments on those issues.

Factual and Procedural Background

¶16 The basic facts of this case were set forth in another matter before this Court

pertaining to Cybulski’s petition for reinstatement of her driver’s license. See In re

License Suspension of Cybulski, 2008 MT 128, 343 Mont. 56, 183 P.3d 39 (Cybulski I).

The facts detailed in Cybulski I that are pertinent to the instant appeal include:

At about 11:25 p.m. on August 21, 2006, Dispatcher Lyne Anderson
of Miles City received a 911 call from a driver on I-94 east who reported
that he had just passed a red Camaro or Firebird near mile marker 188
going the wrong way on the highway. This citizen tip was confirmed a
short time later by Undersheriff Roos, who passed the red Camaro near
mile marker 168. Roos contacted Dispatcher Anderson to report that the
vehicle was traveling westbound in the eastbound lane of I-94, in excess of
100 miles per hour. Deputy Hayter was present at the dispatch center that
evening, and overheard the calls come in. When it became clear that the
Camaro was approaching his jurisdiction, he left the dispatch center to
respond to the call.
Deputy Hayter parked his patrol car on the cross-over near exit 146
to intercept the Camaro. He requested the assistance of other peace officers
in stopping the Camaro. In the meantime, 911 calls from drivers on I-94
continued to pour in.
Close to 11:53 p.m., Deputy Hayter got a visual on the red Camaro
traveling west in the eastbound lane of I-94. According to Hayter’s radar,
the car was traveling at 75 miles per hour. He activated his lights and
sirens, and began pursuit of the vehicle. The Camaro failed to respond.
Several miles later, with Deputy Hayter still in pursuit, the Camaro passed
Sergeant Davis. Davis was staked out near exit 141, waiting to intercept
the errant Camaro. Davis activated his emergency lights and sirens, and
joined the pursuit.
After driving on the wrong side of the divided highway for nearly
fifty miles, passing multiple vehicles traveling in the opposite direction, and
being pursued for more than six miles by police officers with emergency
lights and sirens activated, the red Camaro finally slowed to a stop near
mile marker 139. Sergeant Davis reached the car first, and gave some
commands to the driver, a woman later identified as . . . Cybulski . . . .

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 Cybulski did not respond to Davis’s instructions, so he forcibly removed
her from the vehicle, and placed her facedown on the ground. Deputy
Hayter assisted Sergeant Davis in restraining Cybulski. Both officers
noticed a strong odor of alcohol on her person, though the record contains
conflicting evidence as to whether they noticed this before or after
handcuffing her.
After Sergeant Davis read Cybulski her Miranda rights, Cybulski
admitted that she had been drinking. Both officers noticed that Cybulski
seemed disoriented and confused. Davis handed custody of Cybulski over
to Deputy Hayter, who took her to the Custer County Detention Center for
further processing and DUI testing.
At the detention center, Deputy Hayter administered several sobriety
tests to Cybulski. Cybulski indicated that due to a prior injury or surgery,
she could not perform any tests which involved walking or standing on one
leg. Deputy Hayter asked Cybulski to recite the alphabet. Midway through
the alphabet, she paused, and then asked if she could continue. Deputy
Hayter indicated that she could, and she then finished the recitation. In
Hayter’s judgment, Cybulski failed the alphabet test.

Next, Hayter administered the HGN test. He was trained to
administer the test; however, this was the first time he had actually given
one. Deputy Hayter noticed that Cybulski’s eyes were red and bloodshot,
and after observing her involuntary eye movements, concluded that she
failed the HGN test. He then asked her to perform a breathalyzer test, and
explained the consequences of refusing under Montana’s informed consent
law. Cybulski refused; Deputy Hayter read her her Miranda rights again,
and turned her over to the detention staff.

Cybulski I, ¶¶ 4-10.

¶17 Cybulski was charged with DUI in violation of § 61-8-401, MCA; Driving on the

Wrong Side of a Divided Highway in violation of § 61-8-330, MCA; and Reckless

Driving in violation of § 61-8-301, MCA. On November 1, 2006, she pled guilty in

Justice Court to the charge of Driving on the Wrong Side of a Divided Highway, and she

was fined $85. Trial for the two remaining charges was set for February 14, 2007.

¶18 On February 1, 2007, the Justice of the Peace granted Cybulski’s motion to

suppress much of the State’s evidence based on the legality of her arrest. The following

5
day, the State appealed to the District Court for a trial de novo. Consequently, the Justice

Court trial was vacated and the file was transmitted to the District Court. Thereafter, the

State moved to dismiss the misdemeanor Reckless Driving charge and to file an

Information charging Cybulski with felony Criminal Endangerment. The District Court

granted the State’s motions after a hearing and Cybulski was arraigned on the Criminal

Endangerment charge. The DUI charge and the Criminal Endangerment charge were

joined for trial at the State’s request.

¶19 Following a four-day jury trial beginning August 28, 2007, Cybulski was

convicted of misdemeanor DUI and felony Criminal Endangerment. She was sentenced

to one day in jail on the DUI charge and her driver’s license was suspended for six

months. Cybulski received a five-year deferred imposition of sentence on the Criminal

Endangerment charge to run concurrently with the DUI sentence. She was also fined

$1000 on each charge.

¶20 Cybulski appeals the District Court’s Judgment.

Issue 1.

¶21 Whether the District Court erred in denying Cybulski’s motion to suppress
evidence based on an allegedly illegal arrest.

¶22 Prior to trial, Cybulski moved to suppress all of the evidence collected during and

after her arrest on the grounds that her arrest was illegal. The District Court denied the

motion concluding that at the time Sergeant Davis removed Cybulski from her vehicle,

Sergeant Davis “clearly had a right to suspect that she was under the influence of alcohol

or drugs, although some other mental impairment was also possible.”

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¶23 Although the record indicates that both Sergeant Davis and Deputy Hayter stopped

Cybulski, that Sergeant Davis forcibly removed Cybulski from her vehicle and read her

her Miranda rights, and that Sergeant Davis, with Deputy Hayter’s assistance, handcuffed

Cybulski, Cybulski argues that because Deputy Hayter was an inexperienced officer, he

did not meet the first prong of the test to determine whether sufficient probable cause

existed to arrest her for DUI. Thus, she contends that her arrest for DUI was unlawful

and all evidence concerning sobriety testing, including the video of her arrest, should be

suppressed.

¶24 This Court quite recently pointed out that there is no statute in Montana that

implicitly or explicitly carves out a class of Montana peace officers as the only officers

capable of rendering observations and decisions to form particularized suspicion for an

investigatory stop or probable cause for an arrest. Brown v. State, 2009 MT 64, ¶ 19, ___

Mont. ___, ___ P.3d ___. We stated in Brown that “[r]ather than requiring that each

officer making an investigative stop have a certain amount of experience, the test for

particularized suspicion simply requires that the information available to the investigating

officer—whether a rookie or a veteran—be sufficient to allow a hypothetical

‘experienced’ officer to have either particularized suspicion for a stop, or probable cause

for an arrest.” Brown, ¶ 19 (emphasis in original).

¶25 We held in Brown that

for a peace officer to have particularized suspicion or reasonable grounds
for an investigatory stop, the peace officer must be possessed of: (1)
objective data and articulable facts from which he or she can make certain
reasonable inferences; and (2) a resulting suspicion that the person to be
stopped has committed, is committing, or is about to commit an offense.

7
 While a peace officer’s experience and training may be a factor in
determining what sort of reasonable inferences he or she is entitled to make
from his or her objective observations, experience and training will not
necessarily be the defining element of the test. . . . The courts will look to
the facts and to the totality of the circumstances of each case.

Brown, ¶ 20.

¶26 In this case, the information available to the investigating officers—Cybulski’s

driving on the wrong side of the interstate for more than forty miles; her failure to

immediately respond to the officers’ commands to pull over; her failure to respond to the

officers’ commands to exit the vehicle; and the strong odor of alcohol coming from her

person—were sufficient to allow a hypothetical “experienced” officer to have both a

particularized suspicion for a stop, and probable cause for an arrest.

¶27 Accordingly, we hold that the District Court did not err in denying Cybulski’s

motion to suppress evidence.

Issue 2.

¶28 Whether the District Court erred in denying Cybulski’s motion to dismiss the DUI
charge on speedy trial grounds.

¶29 On the day before trial was to commence in this case, Cybulski filed a Motion to

Dismiss for Lack of Speedy Trial. The motion consisted of one paragraph and no brief in

support of the motion was ever filed. The District Court denied Cybulski’s motion on the

basis that it was not timely filed, “it was not accompanied by anything approaching what

could be considered a Brief,” and it did not allege any prejudice to Cybulski.

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¶30 Cybulski now claims on appeal that the District Court erred when it failed to

conduct the analysis required by State v. Ariegwe,1 2007 MT 204, 338 Mont. 442, 167

P.3d 815, concerning her speedy trial motion. She also claims that because the State

appealed the Justice Court’s evidentiary rulings, the speedy trial clock did not commence

anew on the date the appeal was filed in the District Court.

¶31 Section 46-13-101(4), MCA, provides that

all pretrial motions must be in writing and must be supported by a
statement of the relevant facts upon which the motion is being made. The
motion must state with particularity the grounds for the motion and the
order or relief sought.

In her Motion to Dismiss for Lack of a Speedy Trial, Cybulski simply stated that more

than one year had elapsed since she was charged with the offense of DUI2 thereby

triggering an inquiry into the issue of speedy trial. Such bald assertions fail to fulfill the

requirements for pretrial motions that such motions “must state with particularity the

grounds for the motion and the order or relief sought.” Section 46-13-101(4), MCA; see

also State v. Yecovenko, 2004 MT 196, ¶ 21, 322 Mont. 247, 95 P.3d 145. Consequently,

we hold that the District Court did not err in denying Cybulski’s Motion to Dismiss for

Lack of a Speedy Trial.

Issue 3.

¶32 Whether the District Court abused its discretion in instructing the jury on the
definition of Criminal Endangerment.

1
This Court decided Ariegwe on August 16, 2007. Cybulski’s Motion to Dismiss for
Lack of a Speedy Trial was filed in the District Court on August 27, 2007.
2
Prior to the start of trial, Cybulski’s attorney clarified that the speedy trial motion
applied only to the DUI charge.

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¶33 Cybulski contends that the jury was not properly instructed on the “knowingly”

element of the criminal endangerment charge. She concedes that driving in the incorrect

lane of an interstate highway in the middle of the night creates a substantial risk of death

or serious bodily injury to others. However, she contends that she did not realize that she

was in the incorrect lane of travel until after she was stopped. Consequently, she argues

that because she did not knowingly engage in dangerous behavior, she should have been

charged with negligent endangerment or some other misdemeanor offense. She

maintains that the totality of the instructions given by the District Court diminished the

requirement that she had to have “knowingly” engaged in the dangerous behavior to be

guilty of criminal endangerment.

¶34 In considering whether a district court has correctly instructed the jury in a

criminal case, we determine whether the instructions, taken as a whole, fully and fairly

instructed the jury on the law applicable to the case. State v. Archambault, 2007 MT 26,

¶ 14, 336 Mont. 6, 152 P.3d 698 (citing State v. Courville, 2002 MT 330, ¶ 15, 313 Mont.

218, 61 P.3d 749). Recognizing that a district court has broad discretion when it instructs

a jury, we review a district court’s decisions regarding jury instructions to determine

whether the court abused its discretion. State v. Bieber, 2007 MT 262, ¶ 22, 339 Mont.

309, 170 P.3d 444 (citing State v. Swann, 2007 MT 126, ¶ 32, 337 Mont. 326, 160 P.3d

511). To determine whether a district court has abused its discretion in instructing the

jury, we determine whether the court acted arbitrarily or exceeded the bounds of reason

resulting in substantial injustice. Bieber, ¶ 22 (citing State v. English, 2006 MT 177,

¶ 50, 333 Mont. 23, 140 P.3d 454). Moreover, to constitute reversible error, any mistake

10
in rendering the instructions must prejudicially affect the defendant’s substantial rights.

Archambault, ¶ 14; Courville, ¶ 15.

¶35 The District Court gave the following instruction to the jury in the instant case:

A person commits the offense of criminal endangerment if the
person knowingly engages in conduct that creates a substantial risk of death
or serious bodily injury to another.

This language is taken from § 45-5-207(1), MCA, the criminal endangerment statute.

Cybulski offered the following additional language from the statute, which the court

refused:

This conduct includes, but is not limited to, knowingly placing in a tree,
log, or other wood any steel, iron, ceramic, or other substance for the
purpose of damaging a saw or other wood harvesting, processing, or
manufacturing equipment.

¶36 Because this additional language on tree spiking had no application to Cybulski’s

case, it was correctly refused by the District Court. While district courts must instruct the

jury on each theory which is supported by the record, defendants are not entitled to have

the jury instructed on every nuance of their theory of the case. Archambault, ¶ 25 (citing

State v. Claric, 271 Mont. 141, 145, 894 P.2d 946, 949 (1995), overruled in part and on

other grounds by Faulconbridge v. State, 2006 MT 198, 333 Mont. 186, 142 P.3d 777).

¶37 The District Court also refused the following instruction proposed by Cybulski:

The word “knowingly,” as it relates to the charge of criminal
endangerment, contemplates a person’s awareness of the high probability
that the conduct in which he or she is engaging, whatever that conduct may
be, will cause a substantial risk of death or serious bodily injury to another.

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Instead, the court instructed the jury with a shorter and clearer statement that, in essence,

says the same thing: “A person acts knowingly when the person is aware there exists the

high probability that the person’s conduct will cause a specific result.”

¶38 Taken as a whole, the jury instructions in this case did not prejudicially affect

Cybulski’s rights. Rather, the instructions as given by the District Court afforded

Cybulski the opportunity to argue her defense theory that she was not aware that her

conduct would cause a substantial risk of death or serious bodily injury.

¶39 Accordingly, we hold that the District Court did not abuse its discretion in

instructing the jury on the definition of Criminal Endangerment.

Issue 4.

¶40 Whether the District Court erred in denying Cybulski’s motion to dismiss the
Criminal Endangerment charge for insufficient evidence at the close of the State’s
case-in-chief.

¶41 Cybulski’s counsel moved to dismiss the charge of criminal endangerment on the

basis of insufficient evidence at the close of the State’s case-in-chief, but the District

Court denied the motion. Cybulski now argues on appeal that the court erred in denying

her motion because the “knowingly” element of criminal endangerment was not proven

and because there was no proof that the acts constituting criminal endangerment occurred

in Custer County. Regarding the latter argument, she maintains that because the

interstate was blocked by law enforcement officers in two locations prior to Cybulski

entering Custer County and thereby stopping all traffic, there was no one who could have

been threatened or injured by her conduct in Custer County, thus the Custer County

District Court did not have jurisdiction in this case.

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¶42 We review a district court’s denial of a motion to dismiss for insufficient evidence

de novo. State v. Rosling, 2008 MT 62, ¶ 33, 342 Mont. 1, 180 P.3d 1102 (citing Swann,

¶¶ 16-19; State v. McWilliams, 2008 MT 59, ¶ 37, 341 Mont. 517, 178 P.3d 121). In

addition, a motion to dismiss for insufficient evidence is appropriate only if, viewing the

evidence in the light most favorable to the prosecution, there is not sufficient evidence

upon which a rational trier of fact could find the essential elements of the crime beyond a

reasonable doubt. Rosling, ¶ 35 (citing § 46-16-403, MCA; Swann, ¶¶ 16, 19).

¶43 As to Cybulski’s claim that the “knowingly” element of criminal endangerment

was not proven, § 45-2-103(3), MCA, provides: “The existence of a mental state may be

inferred from the acts of the accused and the facts and circumstances connected with the

offense.” In addition,

[a] person who is in an intoxicated condition is criminally responsible for
his conduct and an intoxicated condition is not a defense to any offense and
may not be taken into consideration in determining the existence of a
mental state which is an element of the offense unless the defendant proves
that he did not know that it was an intoxicating substance when he
consumed, smoked, sniffed, injected, or otherwise ingested the substance
causing the condition.

Section 45-2-203, MCA.

¶44 Viewing the evidence in this case in the light most favorable to the prosecution, as

we are constrained to do, Rosling, ¶ 35, a rational trier of fact could conclude beyond a

reasonable doubt that Cybulski was either aware of her conduct and the risk it was

creating, or she was unaware solely because of her intoxicated condition. We concluded

in Cybulski I that it would be proper to infer that Cybulski was driving under the

influence based upon “the sheer length of time that Cybulski traveled on the wrong side

13
of the interstate, and her apparent obliviousness to oncoming traffic traveling in the same

lane” paired with her “unusually delayed response to the officer’s emergency signals,

spotlights, and sirens . . . .” Cybulski I, ¶ 24. Furthermore, Cybulski was familiar with

that stretch of interstate, having driven it many times. There were numerous indicators

that she was traveling in the wrong lane including billboards and highway signs facing

the wrong way; vehicles approaching and swerving from her lane of travel; and the

flashing lights and honking by approaching vehicles, yet Cybulski continued to drive on

the wrong side of the interstate for more than forty miles.

¶45 Based on the foregoing, we conclude that the “knowingly” element of criminal

endangerment was indeed proven.

¶46 As to Cybulski’s argument that the Custer County District Court did not have

jurisdiction in this case, the State points out that although Cybulski calls her argument

“jurisdictional,” she is actually arguing venue. Section 46-3-112(1), MCA, provides that

“if two or more acts are requisite to the commission of an offense . . . , the charge may be

filed in any county in which any of the acts . . . occurred.” In addition, subsection (2) of

this statute provides that “if an act requisite to the commission of an offense occurs or

continues in more than one county, the charge may be filed in any county in which the act

occurred or continued.” Section 46-3-112(2), MCA.

¶47 By the plain wording of these statutes, venue was proper in any county where any

act requisite to the commission of the offense of criminal endangerment occurred or

continued. In this case, Cybulski admitted that she drove on the wrong side of the

interstate in Custer County, thus venue was proper in Custer County.

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¶48 Furthermore, § 46-3-111(2), MCA, provides that “[a]ll objections that a charge is

filed in the improper county are waived by a defendant unless made before the first

witness is sworn at the time of trial.” There is no indication in the record in this case that

Cybulski objected to the charges being filed in and the case being tried in Custer County.

¶49 Accordingly, we hold that the District Court did not err in denying Cybulski’s

motion to dismiss the charge of criminal endangerment at the close of the State’s

case-in-chief.

Issue 7.

¶50 Whether the District Court abused its discretion in admitting the patrol car video
taken by the officer who stopped Cybulski and removed her from her vehicle.

¶51 Cybulski argues that the patrol car video of Sergeant Davis following and stopping

her vehicle should not have been admitted into evidence because Sergeant Davis recorded

over the final few minutes of the video which would have shown Cybulski after she was

removed from her vehicle. Cybulski claims that the deleted portion of the video would

have shown that she was not “stumbling drunk” and would have resolved contradictions

in the testimony of Sergeant Davis and Deputy Hayter concerning Cybulski’s behavior

immediately after her arrest.

¶52 The District Court responded to Cybulski’s objection to the video by pointing out

that the erased portion would not have contained any exculpatory evidence.

While it would have been preferable for the entire video to have
been preserved, the Court does not find that the erased portion would have
contained any exculpatory images. First, the video shown was of
decreasing video quality due to Sgt. Davis’s patrol car fogging up because
of the police dog’s breath. Second, Sgt. Davis was not wearing a
personally [sic] microphone and there would have been no audio indicating

15
 what Sgt. Davis or Ms. Cybulski was saying. Third, Sgt. Davis testified
that he backed up the recording the next day he was on patrol because of
the poor quality of what was left, so as to conserve recording time on the
tape for further patrol stops. While Ms. Cybulski is suspicious of Sgt.
Davis’s motives in erasing the last few minutes, the Court is not convinced
that the erasure was done in bad faith.

¶53 “[A] district court has broad discretion in determining whether evidence is

relevant and admissible and we will not overturn that determination absent an abuse of

discretion.” McCormick v. Brevig, 2004 MT 179, ¶ 75, 322 Mont. 112, 96 P.3d 697.

Cybulski relies on our holding in McCormick, for the proposition that the requirement of

authentication or identification is a condition precedent to admissibility. Even so, this

requirement is satisfied “by evidence sufficient to support a finding that the matter in

question is what its proponent claims.” M. R. Evid. 901(a). The State did not present the

video as anything other than a video of Sergeant Davis’s chase and stop of Cybulski.

Furthermore, Cybulski thoroughly cross-examined Sergeant Davis as to the reason the

video stopped where it did and what occurred after the video stopped.

¶54 Accordingly, we hold that the District Court did not abuse its discretion in

admitting the patrol car video.

Issue 8.

¶55 Whether the District Court abused its discretion in admitting the transcript of the
911 calls.

¶56 Cybulski contends that the District Court admitted an unauthenticated transcript of

911 calls without proper foundation. She argues that the original tape recording was

available and should have been played to the jury.

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¶57 We review a district court’s evidentiary decisions to determine whether the court

abused its discretion. State v. Mizenko, 2006 MT 11, ¶ 8, 330 Mont. 299, 127 P.3d 458,

cert. denied, 549 U.S. 810, 127 S. Ct. 43 (2006) (citing State v. Cameron, 2005 MT 32,

¶ 14, 326 Mont. 51, 106 P.3d 1189). We review de novo a district court’s conclusions of

law and interpretations of the rules of evidence. Mizenko, ¶ 8 (citing State v. Villanueva,

2005 MT 192, ¶ 9, 328 Mont. 135, 118 P.3d 179; State v. Mathis, 2003 MT 112, ¶ 8, 315

Mont. 378, 68 P.3d 756).

¶58 At the pretrial evidentiary hearing, the State introduced a transcript of the 911 calls

from the night of Cybulski’s arrest reporting a vehicle traveling the wrong direction on

the interstate. Cybulski did not object to the admission of the transcript and none of her

questioning challenged the accuracy of the transcript.

¶59 At trial, the State laid a foundation for admission of this transcript through the

testimony of Lyne Anderson, a 911 dispatcher with the Emergency Operating Center of

the Miles City Police Department, who had taken many of the calls. Anderson testified

that the calls to 911, as well as police radio traffic concerning the incident, were recorded

through a voice-activated recording system. The recordings were then transcribed into a

written transcript, which Anderson had reviewed. She testified that the transcript was a

true and accurate transcription of the 911 calls and radio traffic.

¶60 Cybulski objected to admission of the transcript on the grounds that it lacked

foundation, but the District Court overruled the objection based on Anderson’s testimony.

Nevertheless, the court stated that Cybulski could play the actual tape if she wanted, but

Cybulski did not do so.

17
¶61 We have repeatedly held that we will not put a trial court in error for a ruling or

procedure in which a party acquiesced or participated. State v. Clay, 1998 MT 244, ¶ 24,

291 Mont. 147, 967 P.2d 370 (citing Matter of R.B.O., 277 Mont. 272, 283, 921 P.2d 268,

275 (1996); In re Pedersen, 261 Mont. 284, 287, 862 P.2d 411, 413 (1993)). It is

disingenuous for Cybulski to now argue that the District Court erred in not admitting the

actual tape of the 911 calls when the court afforded Cybulski the opportunity to play the

tape, but Cybulski failed to do so.

¶62 Accordingly, we hold that the District Court did not abuse its discretion in

admitting the transcript of the 911 calls.

Issue 9.

¶63 Whether the District Court abused its discretion in admitting the video of Cybulski
undergoing sobriety testing at the detention center, with a portion of the video
muted.

¶64 Cybulski contends that because Officer Hayter was not competent to administer

the HGN test, the portion of the video taken at the detention center depicting Officer

Hayter administering the test should not have been played to the jury even though the

sound was muted. She contends that while the images of her physical characteristics may

have been relevant, that fact was substantially outweighed by the danger of unfair

prejudice to her by showing that portion of the video.

¶65 We pointed out in the previous issue that we will review a district court’s

evidentiary decisions to determine whether the court abused its discretion, and we will

review de novo a district court’s conclusions of law and interpretations of the rules of

evidence. Mizenko, ¶ 8. Under Montana’s Rules of Evidence, “[a]ll relevant evidence is

18
admissible,” M. R. Evid. 402, and evidence is relevant if it has “any tendency to make the

existence of any fact that is of consequence to the determination of the action more

probable or less probable than it would be without the evidence,” M. R. Evid. 401.

Moreover, relevant evidence may be excluded “if its probative value is substantially

outweighed by the danger of unfair prejudice . . . .” M. R. Evid. 403.

¶66 In criminal proceedings, probative evidence is almost always prejudicial to the

defendant. State v. Bieber, 2007 MT 262, ¶ 59, 339 Mont. 309, 170 P.3d 444 (citing

State v. Pittman, 2005 MT 70, ¶ 27, 326 Mont. 324, 109 P.3d 237). However, unfair

prejudice “can arise from evidence that arouses the jury’s hostility or sympathy for one

side without regard to its probative value, evidence that confuses or misleads the trier of

fact, or evidence that might unduly distract the jury from the main issues.” Bieber, ¶ 59

(citing State v. Huether, 284 Mont. 259, 265, 943 P.2d 1291, 1295 (1997)).

¶67 In this case, the District Court denied Cybulski’s motion to exclude the portion of

the tape showing Deputy Hayter administering the HGN test to Cybulski at the detention

center. In doing so, the court concluded that the probative value of the tape outweighed

any prejudice to Cybulski and that that portion of the tape should be played with the

sound muted unless Cybulski requested that the sound be turned on. Cybulski has failed

to point to any unfair prejudice she may have suffered by playing the tape.

¶68 In addition, the State agreed not to introduce the results of the HGN test because

Deputy Hayter was not certified to administer the test. However, Cybulski herself asked

that the results of the test be included in Deputy Hayter’s report when it was admitted

into evidence. Once again we note that we will not put a trial court in error for a ruling or

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procedure in which a party acquiesced or participated. Clay, ¶ 24. By requesting that the

results of the HGN test be admitted into evidence, Cybulski waived her objection to the

admission of the video depicting the administration of that test.

¶69 Accordingly, we hold that the District Court did not abuse its discretion in

admitting the video of Cybulski undergoing the HGN test at the detention center.

¶70 Affirmed.

/S/ JAMES C. NELSON

We Concur:

/S/ PATRICIA COTTER
/S/ W. WILLIAM LEAPHART
/S/ JIM RICE
/S/ BRIAN MORRIS

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