March 18 2010
DA 09-0257
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 56N
STATE OF MONTANA,
Plaintiff and Appellee,
v.
LORIN T. HERON,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourteenth Judicial District,
In and For the County of Musselshell, Cause No. DC 07-11
Honorable E. Wayne Phillips, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Joslyn Hunt, Chief Appellate Defender; Lisa S. Korchinski,
Assistant Appellate Defender, Helena, Montana
For Appellee:
Hon. Steve Bullock, Montana Attorney General; Matthew T. Cochenour,
Assistant Attorney General, Helena, Montana
Kent Sipe, Musselshell County Attorney, Roundup, Montana
Submitted on Briefs: February 10, 2010
Decided: March 18, 2010
Filed:
__________________________________________
Clerk
Chief Justice Mike McGrath 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 2006, 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 Lorin Heron (Heron) appeals from the denial of his motion for a directed verdict1
by the Fourteenth Judicial District Court, Musselshell County. We affirm.
¶3 The issue on appeal is whether the District Court correctly denied Heron’s motion
to dismiss for insufficient evidence.
¶4 After a “three-day runner,” Heron arrived drunk to meet with his probation officer.
Heron admitted to drinking and eventually to driving. Two officers observed that Heron
smelled of alcohol and had red or glassy eyes. Heron was arrested for an alcohol
violation of his probation after submitting to a preliminary alcohol screening test that
showed positive. However, when his vehicle was found nearby, Heron refused all field
sobriety tests and refused to provide a breath sample. Heron was arrested for felony
driving under the influence (DUI) and was convicted by a jury.
1
We deem Heron’s motion as a motion to dismiss for insufficient evidence made
pursuant to § 46-16-403, MCA, and apply the same standard of review as previously used
for motions for a directed verdict of acquittal. See State v. McWilliams, 2008 MT 59,
¶ 36, 341 Mont. 517, 178 P.3d 121.
2
¶5 This Court reviews de novo a district court’s denial of a motion to dismiss for
insufficient evidence. State v. Cybulski, 2009 MT 70, ¶ 42, 349 Mont. 429, 204 P.3d 7.
When examining the sufficiency of evidence, this Court views the evidence in the light
most favorable to the prosecution to determine whether “a rational trier of fact could find
the essential elements of the crime beyond a reasonable doubt.” Cybulski, ¶ 42. This
Court defers to the fact-finder on issues of witness credibility and evidentiary weight.
State v. Trujillo, 2008 MT 101, ¶¶ 8-9, 342 Mont. 319, 180 P.3d 1153.
¶6 It is unlawful for a person 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.” Section 61-
8-401(1)(a), MCA. “‘Under the influence’ means that as a result of taking into the body
alcohol, drugs, or any combination of alcohol and drugs, a person’s ability to safely
operate a vehicle has been diminished.” Section 61-8-401(3)(a), MCA. Signs of
intoxication include bloodshot or glassy eyes, the odor of alcohol, and slurred speech.
Hulse v. DOJ, 1998 MT 108, ¶ 40, 289 Mont. 1, 961 P.2d 75. Additionally, a jury may
infer that a person who refuses to submit to a breath test is under the influence. Section
61-8-404(2), MCA.
¶7 Heron argues only that the evidence was insufficient to show that he was under the
influence. However, the State presented sufficient evidence to allow the jury to find
Heron “under the influence” beyond a reasonable doubt. Heron admitted he was on a
“three-day runner,” he admitted driving, and officers testified that he smelled strongly of
alcohol and his eyes were glassy and red. Viewing this evidence in the light most
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favorable to the prosecution, we conclude that the jury was presented sufficient evidence
to find that Heron was under the influence. Cybulski, ¶ 42.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
memorandum opinions. It is manifest on the face of the briefs and the record that the
appeal is without merit because the issue is clearly controlled by settled Montana law.
¶9 Affirmed.
/S/ MIKE McGRATH
We concur:
/S/ JAMES C. NELSON
/S/ W. WILLIAM LEAPHART
/S/ MICHAEL E WHEAT
/S/ JIM RICE
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