State v. Ingraham

No

No. 97-076

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 156

STATE OF MONTANA,

Plaintiff and Respondent,

v.

GREGORY LLOYD INGRAHAM,

Defendant and Appellant.

APPEAL FROM: District Court of the Twentieth Judicial District,

In and for the County of Lake,

The Honorable Katherine R. Curtis, Judge presiding.

COUNSEL OF RECORD:

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For Appellant:

Douglas J. Wold; Wold Law Firm, P.C.; Polson, Montana

For Respondent:

Hon. Joseph P. Mazurek, Attorney General;

Patricia Jordan, Assistant Attorney General;

Helena, Montana

Deborah Kim Christopher, Lake County Attorney;

Polson, Montana

Submitted on Briefs: January 15, 1998

Decided: June 23, 1998

Filed:

__________________________________________

Clerk

Justice Jim Regnier delivered the opinion of the Court.

¶1 Gregory Lloyd Ingraham appeals from a judgment and commitment of the
Twentieth Judicial District Court, Lake County, based on a jury verdict convicting
him of negligent homicide, criminal endangerment, and criminal trespass to
property. We affirm in part, reverse in part, and remand for further proceedings

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consistent with this opinion.

¶2 Ingraham advances twelve issues on appeal, reordered as follows for purposes of
our discussion:

¶3 1. Did the District Court err in admitting evidence of various medications detected
in Ingraham's blood and urine, as well as those found in his car?

¶4 2. Did the District Court err in admitting evidence of warnings generally given
with the various medications detected in Ingraham's system and found in his car?

¶5 3. Did the District Court err in instructing the jury regarding the definition of
"knowingly"?

¶6 4. Are convictions for negligent homicide and criminal endangerment legally
inconsistent?

¶7 5. Is there sufficient evidence of record to support Ingraham's conviction for
criminal endangerment?

¶8 6. Is there sufficient evidence of record to support Ingraham's conviction for
negligent homicide?

¶9 7. Did the District Court err in admitting evidence of a second blood alcohol test,
the results of which were contained in Ingraham's medical records?

¶10 8. Did the District Court err in excluding a demonstrative videotape from
evidence ?

¶11 9. Did the District Court err in admitting expert testimony regarding blood
alcohol levels?

¶12 10. Did the District Court err in admitting testimony by paralegal Jeanne
Windham?

¶13 11. Did the District Court err in ordering the parties not to contact the jurors
after they rendered their verdict?

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¶14 12. Did the District Court commit prejudicial cumulative error, thereby entitling
Ingraham to a new trial?

PERTINENT FACTUAL AND PROCEDURAL BACKGROUND

¶15 In the early morning hours of October 13, 1995, Ingraham was driving north on
Highway 93 near St. Ignatius, in Lake County, Montana. Roughly two miles north of
town, Ingraham's vehicle crossed the center line and struck an oncoming Ford
Ranger pickup truck, driven by Cynthia Harriman-Larson. Harriman-Larson died
in the collision, and her passenger, Delbert Adams, suffered severe injuries.

¶16 On the evening of the accident, Ingraham left his office at roughly 5:00 p.m. He
went home, ate a peanut butter sandwich, gathered some hunting gear and his two
dogs, and drove to the home of his friend and former client, Ed Starkel. Ingraham
arrived at Starkel's residence at 5:30 p.m. and remained for approximately two
hours, during which time he drank one-half of a can of beer while helping his friend
prepare for a pack trip. Ingraham left Starkel's at 7:30 p.m. and drove to the Rustic
Hut in Florence, where he met his friend Jeff Lulow and consumed three or four
beers, as well as some popcorn and beer nuts. Ingraham and Lulow left the Rustic
Hut in separate cars at roughly 11:30 p.m. and drove to Mustang Sally's in Missoula,
where Ingraham had two more beers.

¶17 Ingraham left Mustang Sally's between 1:00 and 1:30 a.m. and began the drive
home to Ronan, with his two dogs still in the back seat. Ingraham ate some trail mix
while he was driving, and sipped from a beer he found on the floor behind the
passenger seat in his car. It was a clear evening, and the two-lane road upon which
Ingraham was traveling was dry as he passed through the St. Ignatius area.
According to Ingraham's testimony at trial, just moments before the accident he saw
headlights from an oncoming vehicle approaching in his lane of traffic. Ingraham
shouted, at which point his dogs jumped into the front seat and he pushed them
aside. Ingraham testified that the oncoming vehicle remained in his lane and that he
thus swerved to the left, in a failed attempt to avoid the head-on collision in which
Harriman-Larson was killed and Adams seriously injured.

¶18 Adams, according to his testimony at trial, had spent portions of the day and
evening preceding the accident drinking in St. Ignatius and Ronan. Although
uncertain on the details, Adams indicated he had a few mid-morning beers at a

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friend's house, and then, to the best of his recollection, went home. Sometime later,
he visited friends in Ronan and had a few more drinks. He remembered subsequently
visiting two bars and having additional drinks, before attempting to hitch a ride
home at roughly 2:00 a.m. on the morning of the accident. Shortly thereafter,
Harriman-Larson stopped and offered Adams a ride. Thus, with Adams in the
passenger seat, Harriman-Larson turned south on Highway 93, heading toward St.
Ignatius. Tests revealed that Adams had a blood alcohol content (BAC) of .278.

¶19 Little is known about Harriman-Larson's activities during the evening hours
preceding the accident, save for the fact that she spent approximately two hours
visiting with her friend, Kay Palmer. Palmer testified that Harriman-Larson came
over to her house at approximately 9:00 that evening, and stayed until 11:00 p.m.,
during which time Harriman-Larson drank two bourbon and waters. Harriman-
Larson's activities between the time she left Palmer's house and the time she offered
Adams a ride shortly before the accident, remain unknown. Although Harriman-
Larson's exact activities remain unknown, forensic scientist Lynn Kurtz performed
an alcohol screen on a blood sample taken from Harriman-Larson, which indicated
the presence of .07 grams of alcohol per 100 mills of whole blood. Kurtz testified that
the blood sample may have been contaminated, however, and stated that testing of
Harriman-Larson's vitreous sample revealed a higher BAC of .14. Moreover,
forensic toxicologist Susan Rasmussen testified that Harriman-Larson's body fluids
contained an "extremely high level" of THC, the chemical substance found in
marijuana. Rasmussen explained that tests revealed .297 nanograms of THC per
milliliter of blood.

¶20 Adams testified that, shortly after Harriman-Larson began driving south on
Highway 93, he saw a vehicle approaching in their lane. Adams remembered
Harriman-Larson exclaiming, "Hey what's he doing," and then slowing down before
the impact. Because of his injuries, Adams remembers nothing of the events
immediately following the collision. He testified that his next memory was of waking
up in the hospital three weeks later.

¶21 At 2:30 a.m. that morning Ingraham called his father on the phone from a
nearby house which he forcibly entered while its occupants were asleep. Ingraham
testified that he told his father, also an attorney, that he had been in an accident and
that there were emergency vehicles on the scene. Ingraham's activities immediately
following the accident, including leaving the accident scene to make the call, and

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breaking into the house, gave rise to some of the charges which were ultimately
lodged against him. In fact, the State alleged that Ingraham failed to render aid to
Adams by leaving the accident scene.

¶22 Responding to a call from dispatch, Highway Patrol Officer Michael Roth
arrived at the accident scene just after 3:00 a.m. and asked Ingraham what had
happened. Officer Roth testified that Ingraham first told him he had crossed over the
centerline into the southbound lane, but then explained that, "no, we met in the
middle of the road, in the middle of the centerline."

¶23 Officer Roth suggested that Ingraham go to the hospital and requested a blood
sample. A blood test indicated that Ingraham's BAC was .07 at 4:12 a.m. While
treating Ingraham for his injuries, hospital personnel subsequently drew a second
blood sample, the testing of which indicated that Ingraham's BAC was .05 at 5:30 a.
m.

¶24 Later that day, Officer Roth examined Ingraham's vehicle at an auto body shop
in Ronan. Among the items he found in the car at that time were a bottle of lithium
carbonate capsules and a prescription bottle of Buspar. Indeed, Ingraham's blood
tested positive for the presence of therapeutic levels of lithium, as well as
subtherapeutic levels of librium. Moreover, Ingraham's urine tested positive for the
presence of nicotine, as well as ephedrine and phenylpropanolamine, two drugs
typically found in nonprescription cold medicine. Ingraham's blood also contained
traces of caffeine.

¶25 Sometime after 5:00 p.m. on the day following the accident, Jeanne Windham, a
paralegal and friend of Ingraham's, picked Ingraham up at the hospital. After first
stopping at his house to retrieve some clothing, she drove them to the scene of the
accident at Ingraham's request. At trial, Windham offered testimony regarding her
conversation with Ingraham at the scene of the accident. Windham recollected
Ingraham telling her that his dogs began playing in the back seat and that, as he
attempted to keep them from jumping into the front seat, his car swerved to the left
just prior to colliding with Harriman-Larson's vehicle.

¶26 On October 30, 1995, the State filed an information charging Ingraham with the
felony counts of negligent homicide, in violation of § 45-5-104(1), MCA, and criminal
endangerment, in violation of § 45-5-207(1), MCA. The information additionally

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charged Ingraham with one count of criminal trespass to property, a misdemeanor,
in violation of § 45-6-203(1)(a), MCA. Ingraham entered a plea of not guilty to each
count at his November 1, 1995, arraignment. Following a change of venue, Ingraham
was tried before a Flathead County jury in July 1996. The jury returned its verdict
on July 19, 1996, finding Ingraham guilty on all three counts contained in the
information.

¶27 On December 4, 1996, District Court Judge Katherine R. Curtis sentenced
Ingraham to eight years in Montana State Prison, with two years suspended for the
offense of negligent homicide. Ingraham received a consecutive sentence of eight
years in Montana State Prison, with four suspended, for the offense of criminal
endangerment. The court sentenced Ingraham to six months in the Lake County Jail,
with all time suspended, for the misdemeanor offense of criminal trespass to
property. Ingraham filed his notice of appeal on November 18, 1996, and the court
entered its written judgment and commitment on December 4, 1996.

ISSUE 1

¶28 Did the District Court err in admitting evidence of the various medications
detected in Ingraham's blood and urine, as well as those found in his car?

¶29 On June 20, 1996, Ingraham filed a motion in limine, asking that the court issue
an order precluding argument, evidence, and testimony on a number of subjects.
Ingraham specifically moved to exclude testimony regarding the presence of lithium,
librium, and other chemicals detected in his blood, as well as bottles of prescription
medication found in his car. Ingraham asserted there existed no evidence that the
lithium detected in his system impaired him in any way, and argued that the State's
own expert toxicologist had testified during a pretrial interview that the presence of
librium in his blood had no pharmacological or impairing effect upon Ingraham on
the evening of the accident. In the absence of such an effect, Ingraham argued,
reference by the State to the presence of either drug in Ingraham's system would not
only be irrelevant, but would also cause undue prejudice, mislead the jury, and
confuse the issues. For the same reasons, Ingraham similarly argued, the court
should also preclude the State "from referring to interactions or warnings about
interactions between alcohol and other drugs 'prescribed or recommended' to the
defendant or found in his car."

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¶30 In response, the State conceded that its expert, James Hutchison, "would testify
at trial that, in his opinion, the detected concentrations of either drug probably did
not substantially impair [Ingraham's] ability to drive," but effectively argued that
fact was of little consequence. Rather, the State asserted the critical fact in this case
was that Ingraham had any librium or lithium in his system at all at the time of
collision. The State asserted it was entitled to establish that Ingraham's negligence
included his "use of potentially dangerous, prescription-required drugs in
combination [with] one another." In a July 9, 1996, order, the District Court denied
Ingraham's motion to exclude the drug evidence.

¶31 As with any evidentiary ruling, we review the district court's decision for an
abuse of discretion. See State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257,
1263. We leave the determination of whether evidence is relevant and admissible to
the sound discretion of the trial judge, and will not overturn the court's
determination absent an abuse of discretion. See Gollehon, 262 Mont. at 301, 864
P.2d at 1263. See also State v. Stringer (1995), 271 Mont. 367, 374, 897 P.2d 1063,
1067; State v. Passama (1993), 261 Mont. 338, 341, 863 P.2d 378, 380; State v. Crist
(1992), 253 Mont. 442, 445, 833 P.2d 1052, 1054.

A. Preservation of Objection for Appeal

¶32 We first address the State's procedural argument that Ingraham waived any
objection related to the introduction of the prescription drug bottles found in his car
by failing to object to their admission during trial.

¶33 Highway Patrol Officer Roth testified during the second day of trial that he had
examined Ingraham's vehicle at a Ronan auto body shop on the day of the accident.
Officer Roth stated that, at roughly 1:30 p.m. that afternoon, he retrieved a
prescription bottle of Buspar from the inside pocket of the door on the driver's side
of Ingraham's vehicle. According to the prescription label on the bottle, the Family
Health Pharmacy in Ronan had dispensed the 10 milligram Buspar tablets, which
had been prescribed for Ingraham by a Dr. McDonald. Officer Roth also found a
bottle of lithium carbonate capsules, which bore no prescription label, in the pocket
of the car door. During the fourth day of trial, the State elicited testimony from
Michael Freeman, a pharmacist from the Family Health Pharmacy which dispensed
the Buspar tablets found in Ingraham's car.

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¶34 Ingraham argues the court erred in admitting the prescription bottles into
evidence, and in permitting jurors to examine those bottles. In response, the State
focuses on Ingraham's motion in limine and argues that Ingraham moved only to
prohibit the introduction of the bottles pending the State's ability to establish a
proper foundation. The State points to that portion of the transcript which
documents Officer Roth's testimony, and argues that because Ingraham offered no
objection at trial to the foundation established by the State, or to the introduction of
the prescription drug bottles, he cannot now appeal their admission into evidence.

¶35 Review of Ingraham's motion in limine confirms that he indeed moved to
preclude the State "from referring in opening statement or in testimony to the . . .
presence of other drugs in his . . . car . . . [only] until proper foundation is
established." A close review of the remainder of his motion in limine, however,
indicates Ingraham additionally moved to more generally preclude the State from
"mentioning that medications were found in the defendant's car," and did not
condition that portion of his motion upon the State's ability to establish adequate
foundation at trial.

¶36 We have repeatedly "approved the use of a motion in limine to preserve an
objection for appeal, provided the objecting party makes the basis for his objection
clear to the district court." State v. Fuhrmann (1996), 278 Mont. 396, 403, 925 P.2d
1162, 1166 (citations omitted). A motion in limine has special advantages in situations
such as this. A party may not wish to register an objection in the presence of the jury
for tactical reasons, yet may wish to preserve the objection on appeal. This is
precisely what Ingraham did. Having reviewed the entire text of Ingraham's motion
in limine, we conclude Ingraham properly preserved his objection to the State's
introduction of the Buspar and lithium bottles found in his car, and conclude the
propriety of their admission by the District Court is an issue properly considered by
us on appeal.

B. Relevance

¶37 We turn next to Ingraham's argument that, because the medications detected in
his system and found in his car had no impairing effect upon his ability to drive on
the evening of the accident, evidence of their presence was not relevant to the
question of his alleged negligence or negligent state of mind, and should not have
been admitted by the District Court.

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¶38 To answer this question, we look for initial guidance to the Montana Rules of
Evidence which govern the admission of evidence. Pursuant to Rule 402, M.R.Evid.,
"[a]ll relevant evidence" is generally admissible. Conversely, "[e]vidence which is not
relevant is not admissible." Rule 402, M.R.Evid. Rule 401, M.R.Evid., defines
relevant evidence as "evidence having 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."

¶39 In Havens v. State (Mont. 1997), 54 St. Rep. 1108, 945 P.2d 941, a recent civil
negligence case arising from an automobile accident, we had occasion to determine
the relevancy of evidence indicating that one of the drivers had consumed alcohol on
the day of the accident and had tested positive for the presence of marijuana
consumed some four days earlier. In that case, Havens sustained severe injuries when
the motorcycle he was driving collided with an automobile exiting the parking lot of a
nearby store. Havens, 54 St. Rep. at 1109, 945 P.2d at 942. Havens sued the State of
Montana, alleging its negligent failure to install a stop light at the parking lot's
entrance caused the accident in which he was injured. Havens, 54 St. Rep. at 1109,
945 P.2d at 942. In its defense, the State alleged contributory negligence on Havens'
part, asserting his consumption of alcohol earlier that day had effectively impaired
his ability to react and safely operate his motorcycle. Havens, 54 St. Rep. at 1109, 945
P.2d at 941.

¶40 Prior to trial, Havens filed a motion in limine, seeking to exclude evidence of his
alcohol consumption on the day of the accident. Havens, 54 St. Rep. at 1109, 945 P.2d
at 941. Havens objected to the introduction of the results from a toxicology report
which indicated he had a BAC of .068 and tested positive for the presence of
marijuana. Havens, 54 St. Rep. at 1108, 945 P.2d at 941. The District Court denied
Havens' motion in limine in light of the State's assurance "that it would produce
testimony linking Havens' alcohol consumption as a contributory factor in the
accident." Havens, 54 St. Rep. at 1110, 945 P.2d at 943. At trial, however, the State
simply failed to demonstrate a "connection between Havens' alcohol consumption
and the cause of the accident." Havens, 54 St. Rep. at 1110, 945 P.2d at 943. Instead,
the uncontroverted evidence suggested that the presence of alcohol in Havens' system
played no part in causing the collision. Havens, 54 St. Rep. at 1110, 945 P.2d at 943.

¶41 Following a verdict in the State's favor, Havens moved for a new trial on the
grounds that the court should have excluded "the evidence regarding Havens'

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alcohol consumption and the results of the toxicology report." On appeal from the
District Court's decision denying Havens' motion for a new trial, we held that, absent
a demonstrable causal link between the presence of alcohol and the accident,
evidence of Havens' alcohol consumption was irrelevant and inadmissible. Havens, 54
St. Rep. at 1110, 945 P.2d at 944. We specifically concluded that, pursuant to Rule
402, M.R.Evid., the District Court should have excluded "the results of the toxicology
report and evidence of Havens' alcohol consumption . . . because, in the absence of
testimony linking the evidence to the question of causation, it was irrelevant."
Havens, 54 St. Rep. at 1110, 945 P.2d at 944.

¶42 Similarly, in the present case, whether drug evidence was, in fact, relevant
depended upon the State's ability at trial to demonstrate a link between that evidence
and the cause of the accident. At trial, forensic toxicologist James Hutchison testified
as an expert on behalf of the State as to the various chemical substances detected in
Ingraham's blood and urine samples and their pharmacological effects. Hutchison
explained that Ingraham's first blood sample, drawn at 4:12 a.m. on the morning of
the accident, tested positive for subtherapeutic levels of librium, or chlordiazepoxide,
a prescription drug often used to control anxiety. Although Hutchison testified that
librium, when present in its therapeutic range, may "have some hypnotic sedative
effects," he explained that the .27 milligrams per liter detected in Ingraham's blood
was "well below therapeutic range." Hutchison testified that librium present at such
a level would have "had no pharmacological effect" upon Ingraham on the evening
of the accident, even in light of Ingraham's alcohol consumption. Hutchison noted
that Ingraham's 4:12 a.m. blood sample also contained traces of librium's metabolite,
nordiazepam, which he similarly agreed had no effect whatsoever upon Ingraham's
ability to safely operate a motor vehicle on the night of the accident. The record
indicates Ingraham's blood also tested positive for the presence of caffeine, which
Hutchison again conceded had no pharmacological effect on Ingraham's ability to
drive on the night of the accident.

¶43 Hutchison additionally testified that a second blood sample, drawn from
Ingraham at 5:30 a.m., tested positive for the presence of lithium, a prescription drug
used to control manic depression. Hutchison explained that the .82 millimoles per
liter of lithium present in Ingraham's blood was within the drug's narrow
therapeutic index, and stated that, even in combination with alcohol, that amount
would have had no adverse effect upon Ingraham's ability to drive.

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¶44 Hutchison further testified that Ingraham's urine sample, submitted with the
blood drawn at 5:30 a.m., tested positive for the presence of nicotine, and its
metabolite, cotinine. During cross-examination, Hutchison agreed that neither the
nicotine nor its metabolite had any effect upon Ingraham's ability to operate a motor
vehicle safely on the night of the accident. In fact, Hutchison explained that "[t]he
fact we found these in urine, by itself, implies that there was no impairment, because
the urine's just a reservoir for the drugs after they've cleared from the body." Also
detected in Ingraham's urine, according to Hutchison, were traces of ephedrine and
phenylpropanolamine, two drugs typically used as decongestants and commonly
found in over-the-counter cold medications. Again, Hutchison agreed that neither of
these drugs had any effect upon Ingraham's ability to drive on the evening of the
accident.

¶45 With respect to the prescription bottle of Buspar located in Ingraham's car on
the evening of the accident, it was Hutchison's undisputed testimony at trial that, to
his knowledge, no Buspar was found in any of the blood or urine samples submitted
for testing. Thus, although Ingraham had a bottle of Buspar in his car, the State
presented no evidence at trial to indicate that any traces of the drug were present in
his system.

¶46 Uncontradicted evidence presented to the jury established that none of the drugs
detected in Ingraham's system, or found in his car, had any impairing effect
whatsoever upon his ability to drive on the evening of the accident. As the State failed
to demonstrate that any of the drugs detected in his blood and urine, or found in his
car, were causally connected to the accident, we conclude that evidence of their
presence was irrelevant to the question of Ingraham's negligence, or negligent state
of mind, and was inadmissible on that basis. Accordingly, we conclude the District
Court abused its discretion in denying Ingraham's motion in limine, and hold the
court should have excluded all evidence of the librium, nordiazepam, caffeine,
lithium, nicotine, cotinine, ephedrine, and phenylpropanolamine, found in
Ingraham's system. We similarly hold the court abused its discretion when it denied
Ingraham's motion to exclude evidence of the bottles of lithium and Buspar found by
Officer Roth in Ingraham's car.

C. Prejudicial Effect

¶47 We have recognized that "[e]vidence of the use of drugs is, by its very nature,

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prejudicial." Simonson v. White (1986), 220 Mont. 14, 23, 713 P.2d 983, 988. In
Simonson, a civil negligence action arising from a fatal automobile accident, certain
parties sought to exclude evidence that the driver had smoked marijuana, used
cocaine, and ingested one or two capsules of Ephredine Sulphate on the day of the
accident. Simonson, 220 Mont. at 23, 713 P.2d at 988. The district court granted the
joint motion in limine pending the opposition's ability to establish a foundation
demonstrating that, "[a]t the time of the collision, the driver was under the influence
of drugs, and the passengers knew or should have known that he was under the
influence," and that "[t]he driver's negligence was the proximate or controlling cause
of the injuries to plaintiffs." Simonson, 220 Mont. at 23, 713 P.2d at 988. On appeal,
we approved the district court's "demand for a [causal] link between the prejudicial
evidence and the accident" and held that, in weighing "the probative value of the
evidence against its prejudicial effect," the appropriate test was "whether [the
driver's] drug usage 'more likely than not' affected his ability to drive." Simonson,
220 Mont. at 23-24, 713 P.2d at 988-89. Similarly, in Havens, we recognized that
evidence that the driver had consumed alcohol on the day of the accident and had
tested positive for the presence of marijuana, was of a "highly prejudicial nature"
and "created a danger of confusion on the issue of causation." Havens, 54 St. Rep. at
1110, 945 P.2d at 944.

¶48 Likewise, in the present case, evidence that Ingraham tested positive for the
presence of a variety of chemical substances, including librium and lithium, was of a
highly prejudicial nature. The State failed to demonstrate at trial that it was more
likely than not that Ingraham's use of the various drugs detected in his system or
those found in his car in any way affected his ability to drive on the evening of the
accident. Thus, as we held above, evidence that he had ingested various medications
was in fact irrelevant to the question of Ingraham's negligent state of mind, and had
virtually no probative value whatsoever.

¶49 Even if, as the State suggests, evidence of the drugs was relevant to show a
negligent state of mind, its probative value in that regard would have been
substantially outweighed by its prejudicial nature and the evidence should have been
excluded. Evidence that Ingraham tested positive for the chemical substances of
librium, nordiazepam, lithium, ephedrine, and phenylpropanolamine is by itself
prejudicial. That these drugs are not illegal is of little ultimate consequence. Coupled
with testimony regarding the potential effects of the various drugs, and in light of the
fact that none of these substances had any effect whatsoever on his ability to drive on

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the evening of the accident, evidence of their presence in Ingraham's system and in
his car on the evening of the accident was unduly prejudicial. For example, although
blood tests revealed only subtherapeutic levels of librium in Ingraham's system,
Hutchison testified as to the drug's effects when present in higher, therapeutic doses.
More specifically, Hutchison stated that, when present at a therapeutic level, librium
may "have some hypnotic sedative effects." Despite the fact that none of the drugs,
even in combination with the alcohol in Ingraham's system, had any effect on his
ability to drive, Hutchison was permitted to testify that it would not be advisable "to
mix these drugs and alcohol and driving." Such testimony was not only irrelevant,
but was extremely misleading.

¶50 We have held that, if prejudice is alleged in a criminal case, "it will not be
presumed but must be established from the record that a substantial right was
denied." State v. Stuit (1996), 277 Mont. 227, 232, 921 P.2d 866, 869 (quoting State v.
Wells (1983), 202 Mont. 337, 349, 658 P.2d 381, 388). We have held that "[t]he test of
prejudicial error is whether 'beyond a reasonable doubt the error did not affect the
outcome of the trial.'" Stuit, 277 Mont. at 232, 921 P.2d at 869-70 (quoting State v.
Alexander (1994), 265 Mont. 192, 198, 875 P.2d 345, 349).

¶51 In the present case, we cannot say, beyond a reasonable doubt, that the District
Court's error in admitting evidence of the drugs did not affect the outcome of
Ingraham's trial. We accordingly conclude admission of the drug evidence in this
case constituted prejudicial error.

ISSUE 2

¶52 Did the District Court err in admitting evidence of warnings generally given with
the various medications detected in Ingraham's system and found in his car?

¶53 Our analysis of this issue is, of course, related to our analysis in Issue 1. In his
pretrial motion in limine, Ingraham asked the court to issue an order precluding the
State "from referring to interactions or warnings about interactions between alcohol
and other drugs 'prescribed or recommended' to the defendant or found in his car."
Ingraham suggested that "[r]eferences to or implications of such interactions would
be unduly prejudicial, confuse the issues, mislead the jury, and appeal solely to the
jury's passion and prejudice." As it did with respect to Ingraham's motion to
generally exclude evidence of the drugs detected in his system and found in his car,

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the District Court denied Ingraham's motion to exclude evidence of warnings about
drug and alcohol interactions, concluding that evidence was relevant to the question
of Ingraham's alleged negligence.

¶54 At trial, Ingraham objected to the proposed testimony of Michael Freeman, a
pharmacist from the Family Health Pharmacy in Ronan. Ingraham opposed
Freeman's plans to testify about warnings he had "given either to Mr. Ingraham
directly or to patients generally about the dangers of librium and its use, either in
conjunction with alcohol or with other prescription or nonprescription medicines."
Ingraham sought to exclude the proposed testimony on several grounds. Ingraham
first argued the proposed testimony was irrelevant in light of Hutchison's anticipated
testimony that none of the drugs, either alone or in combination with alcohol, had
any impairing effect upon Ingraham's ability to drive on the evening of the accident.
Ingraham additionally argued that, even if relevant, the prejudicial effect of
admitting evidence of warnings generally given in connection with the various
medications in this case would "far exceed[] its probative value." In response, the
State argued that the drugs detected in Ingraham's system and found in his car
would be relevant to demonstrate Ingraham's negligence and that evidence of
warnings generally given was relevant to demonstrate Ingraham's "gross
negligence . . . in choosing to self-medicate with prescription drugs."

¶55 The District Court overruled Ingraham's objection to Freeman's proposed
testimony. The court again reasoned that the question of whether Ingraham's use of
the drugs, in conjunction with alcohol, "constitutes or is a component of gross
negligence, is a fact question for the jury to decide," and concluded that evidence
regarding warnings "is part of the evidence [the jury] need[s] to make that
determination."

A. Relevance

¶56 As we have with respect to the admissibility of evidence regarding Ingraham's
drug use, we similarly conclude that whether evidence of warnings generally given
with those medications is relevant, and thus admissible, depends upon the State's
ability to demonstrate a link between Ingraham's alleged failure to abide by those
warnings and the cause of the accident.

¶57 At trial, pharmacist Freeman testified as to warnings generally given with the

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medications at issue. Freeman was employed by the Family Health Pharmacy in
Ronan, the pharmacy which dispensed the prescription bottle of Buspar found by
Officer Roth in Ingraham's car. Freeman began his testimony by explaining his
general duties as a pharmacist. For example, Freeman agreed that providing patients
with information regarding "warnings or cautions about drug interactions" is "one
of [his] main functions," and proceeded to detail the various methods he generally
employs to impart that information. Freeman then testified that he had provided
Ingraham with medications in the past, including the prescription bottle of Buspar.
Freeman then read aloud from the auxiliary label affixed to the bottle of Buspar
which cautioned patients to "[o]btain medical advice before taking nonprescription
drugs which may affect the effect of this medication." Then, despite the fact that
absolutely no traces of Buspar were present in Ingraham's system on the night of the
accident, Freeman explained Buspar's use and general effects, recognizing that
although "most patients can take [Buspar] without problem . . . pharmaceutical
science is not an exact science."

¶58 The State then elicited testimony from Freeman regarding those warnings which,
pursuant to "the generally-accepted practice in the field of pharmacy . . . would
accompany the prescription of lithium." Freeman explained that in dispensing
lithium, present at therapeutic levels in Ingraham's blood on the night of the
accident, he

would check a patient's profile, see if there's any medications they're already
taking that might interact and give warning to that effect. Medications that
would cause sedation or drowsiness, you would want to tell the patient that
mixing that with lithium can cause further drowsiness. Any preparation
containing alcohol can augment the drowsiness. Any medication such as a
diuretic which will alter blood chemistry can augment the electrolyte
imbalance that lithium can cause, and the patient would have to be warned
about that too.

¶59 Freeman then examined the bottle of lithium, noting that it bore no prescription
label. Moreover, Freeman testified that Ingraham had no active prescription for
lithium with the Family Health Pharmacy as of the October 13, 1995, date of the
accident.

¶60 The State then asked that Freeman describe those warnings which would

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accompany the dispensing of librium, pursuant to the general practice in the field of
pharmacy. Although the record indicates that the subtherapeutic levels of librium
detected in Ingraham's system on the night of the accident had no pharmacological
effect upon him, Freeman nevertheless explained that, "the very least you would do"
is include a label warning that the drug "may cause drowsiness" and that "[m]ixing
alcohol with that augments the drowsiness."

¶61 As discussed at length above, the State has failed to demonstrate a causal
connection between Ingraham's drug use and the accident. By virtue of that fact, it is
correspondingly apparent from a review of the record that the State has similarly
failed to demonstrate a link between Ingraham's alleged failure to abide by those
warnings and the cause of the accident. Although Freeman's testimony establishes
that Ingraham, in all likelihood, received warnings which would have accompanied
Buspar, no Buspar was found in his system. Thus, whether Ingraham received those
warnings, and whether he complied with them, is not relevant and is, accordingly,
inadmissible.

B. Prejudicial Effect

¶62 We agree with Ingraham's assertion that Freeman's testimony regarding
warnings generally given was not only unduly prejudicial, but also served to obscure
the fact that those medications had no impairing effect upon Ingraham's ability to
drive, and played no causal role in the accident. For example, although the
subtherapeutic levels of librium detected in Ingraham's system had no
pharmacological effect upon Ingraham, Freeman nevertheless testified that librium
may cause drowsiness, particularly in combination with alcohol. Despite the fact that
the therapeutic level of lithium present in Ingraham's system had no impairing effect
upon his ability to drive, Freeman explained that that drug too, would cause
drowsiness, particularly in combination with alcohol. We conclude that such
testimony was not only irrelevant, but was also unduly prejudicial. In light of the
evidence presented, the jury may well have believed that the drugs, combined with
alcohol, caused Ingraham to fall asleep at the wheel. Yet, the record indicates there
exists no scientific basis for such a conclusion. Accordingly, we hold the District
Court abused its discretion in admitting evidence of warnings which generally
accompany such prescription medications as Buspar, lithium, and librium.

¶63 We cannot here conclude that, beyond a reasonable doubt, the District Court's

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erroneous admission of evidence of warnings generally given, did not affect the
outcome of the trial. We accordingly conclude admission of that evidence constituted
prejudicial error.

ISSUE 3

¶64 Did the District Court err in instructing the jury regarding the definition of
"knowingly"?

¶65 Among the charges leveled against Ingraham in the present case was one count
of criminal endangerment, in violation of § 45-5-207(1), MCA. Pursuant to § 45-5-207
(1), MCA, "[a] person who knowingly engages in conduct that creates a substantial
risk of death or serious bodily injury to another commits the offense of criminal
endangerment." At the close of trial, Ingraham objected to Instruction No. 19, which
defined "knowingly" as follows:

A person acts knowingly:

(1) when he is aware of his conduct or

(2) when he is aware under the circumstances that his conduct constitutes a crime or

(3) with respect to a specific fact, when he is aware of a high probability of that fact's
existence.

¶66 Ingraham specifically took issue with the provisions of subsection (1), pursuant
to which the jury could determine that Ingraham acted knowingly if "he [was] aware
of his conduct." The court effectively overruled Ingraham's objections, and issued
Instruction No. 19 as set forth above. The jury returned its verdict, convicting
Ingraham of the offense of felony criminal endangerment.

¶67 On appeal, Ingraham asserts the court incorrectly interpreted the law and
erroneously instructed the jury regarding the appropriate definition of "knowingly."
Ingraham argues "Instruction No. 19 was erroneous because it permitted the jury to
convict Mr. Ingraham without finding that he was aware of 'the high probability'
that his conduct would cause a substantial risk of death or serious bodily injury." In
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support of his argument on this point, Ingraham relies on our recent decision in State
v. Lambert (1996), 280 Mont. 231, 929 P.2d 846, in which we held the court's decision
to issue a similar instruction constituted reversible error.

¶68 In Lambert, decided by this Court five months after Ingraham's trial, the
defendant was charged with criminal endangerment, pursuant to § 45-2-207(1),
MCA, as well as with a number of other offenses. Lambert, 280 Mont. at 233, 929
P.2d at 847. The court instructed the jury that:

A person acts knowingly:

(1) when he is aware of his conduct or

(2) when he is aware under the circumstances that his conduct constitutes a crime or

(3) when he is aware there exists the high probability that his conduct will cause a
specific result.

Lambert, 280 Mont. at 234, 929 P.2d at 848.

¶69 We held the court specifically erred in instructing the jury that a person charged
with criminal endangerment acts knowingly "when he is aware of his conduct,"
instead concluding "that the 'knowingly' element of criminal endangerment
contemplates a defendant's awareness of the high probability that the conduct in
which he is engaging, whatever that conduct may be, will cause a substantial risk of
death or serious bodily injury to another." Lambert, 280 Mont. at 237, 929 P.2d at
850. In so concluding, we recognized that "[i]t is the appreciation of the probable
risks to others posed by one's conduct that creates culpability for criminal
endangerment," rather than the "mere appreciation of one's conduct." Lambert, 280
Mont. at 236, 929 P.2d at 849.

¶70 In the present case, we have already concluded that Ingraham is entitled to a
new trial on the grounds that the court committed reversible error in admitting the
drug evidence. In light of our determination that Ingraham is entitled to a new trial
on the charges of negligent homicide and criminal endangerment on those grounds,

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we simply advise that, on retrial, the District Court should comply with our holding
in Lambert when instructing the jury as to the definition of "knowingly."

ISSUE 4

¶71 Are convictions for negligent homicide and criminal endangerment legally
inconsistent?

¶72 Ingraham argues that his felony convictions for negligent homicide and criminal
endangerment are legally inconsistent because "[t]he jury was permitted to conclude
that the same conduct -- crossing the center line -- constituted both a negligent act
and, inconsistently, a knowing act." More specifically, Ingraham argues that, with
respect to the charge of criminal endangerment, the District Court improperly
instructed the jury as to the definition of "knowingly," because it did not require the
jury to "find that Mr. Ingraham acted with awareness of a high probability that a
particular result would occur." Because the court did not require that the State
demonstrate Ingraham acted "with awareness of the consequences of his acts,"
Ingraham argues, "the common element between the states of mind required for
the" offenses of negligent homicide and criminal endangerment was missing.

¶73 In response, the State first asserts that Ingraham has failed to cite to adequate
authority in support of his argument on this issue, and that this Court should decline
to address it. The State also argues Ingraham failed to present this issue to the
District Court, and he is thus precluded from raising it on appeal. Even if properly
raised on appeal, however, the State next asserts that this Court has previously
rejected the same argument in the case of State v. Pierce (1982), 199 Mont. 57, 64-65,
647 P.2d 847, 851, overruled on other grounds by State v. Tadewaldt (1996), 277 Mont.
261, 922 P.2d 463. In State v. Pierce, we recognized that

[t]he mental state required to satisfy "knowledge" is more culpable than that for "criminal
negligence" because the actor must know it probable that a result will follow. "Criminal
negligence" can be shown if risk to others is disregarded. However, proof of knowledge
necessarily proves the elements of criminal negligence. You cannot engage in conduct
knowing it likely will harm others without, at the same time, disregarding the risk to those
others. The mental states are therefore not mutually exclusive.

Pierce, 199 Mont. at 65, 647 P.2d at 851.

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¶74 Ingraham concedes that, had the District Court properly instructed the jury
pursuant to Lambert, "then the State's argument that proof of knowledge also
establishes proof of negligence under State v. Pierce (1982), 199 Mont. 57, 647 P.2d
347, would be correct." Ingraham asserts, however, that because "the jury was not
required to find that Mr. Ingraham acted with awareness of a high probability that a
particular result would occur . . . the common element between the states of mind
required for the two offenses -- awareness of risk -- was missing."

¶75 As discussed above, we have instructed the District Court, on retrial, to comply
with our holding in Lambert in instructing the jury on the definition of "knowingly"
as an element of criminal endangerment. In so doing, we have effectively mooted
Ingraham's argument that convictions for negligent homicide and criminal
endangerment are legally inconsistent.

ISSUE 5

¶76 Is there sufficient evidence of record to support Ingraham's conviction for
criminal endangerment?

¶77 On appeal, Ingraham argues the State failed to present sufficient evidence at
trial upon which the jury could premise its verdict that Ingraham committed the
crime of criminal endangerment. More specifically, Ingraham asserts the evidence
was insufficient to show Ingraham "knowingly" engaged in conduct that created a
substantial risk to Adams, the injured occupant of the vehicle. Ingraham also argues
the State's evidence failed to demonstrate beyond a reasonable doubt that he
"knowingly" failed to render aid to Adams.

¶78 Having already held that Ingraham is entitled to a new trial on the charge of
criminal endangerment on other grounds, we need not address Ingraham's argument
that the record contains insufficient evidence to support his conviction for criminal
endangerment.

ISSUE 6

¶79 Is there sufficient evidence of record to support Ingraham's conviction for
negligent homicide?

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¶80 Ingraham additionally argues there exists insufficient evidence of record to
support the jury's verdict of guilty on the charge of negligent homicide. In light of
our holding that Ingraham is entitled to a new trial on the charge of negligent
homicide on other grounds, we need not address Ingraham's argument that the
record contains insufficient evidence to support his conviction.

ISSUE 7

¶81 Did the District Court err in admitting evidence of a second blood alcohol test,
the results of which were contained in Ingraham's medical records?

¶82 On October 17, 1995, the State completed an application for an investigative
subpoena "to obtain blood samples taken from Greg Ingraham at St. Luke Hospital,
Ronan, Montana, on or about October 13, 1995, as well as any medical records
pertaining to Ingraham's treatment during that time period." In its application, the
State revealed that because the blood sample already in its possession had been
preserved with a sodium-based preservative, technicians at the Montana State Crime
Lab would be unable to test it for the presence of lithium and Buspar. The State thus
sought Ingraham's medical records, alleging in its application for an investigative
subpoena that:

From previous experience with similar cases I am aware that hospitals routinely perform
their own alcohol and drug tests on patients to determine whether those patients are under
the influence of any substances which could affect their treatment. Hospital records also
reflect statements made by the patient to hospital employees. Both of these items are
relevant to the prosecution of this case.

¶83 The District Court issued the investigative subpoena on October 17, 1995,
concluding that the "application has been made in good faith and in the furtherance
of a pending criminal investigation," and that "there is reason to believe that the
aforesaid test results may constitute evidence of possible criminal activities."

¶84 On February 20, 1996, Ingraham filed a motion to limit the scope of the

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investigative subpoena, and to preclude the State from using any records "thus
obtained from St. Luke's Hospital." Ingraham argued the subpoena was overly
broad, and in violation of §§ 46-4-301 and -303, MCA. In a June 14, 1996, order, the
District Court denied Ingraham's motion on the grounds that it was "unable to
conclude . . . that [Ingraham's] privacy interest in statements made to hospital
employees at or near the time of the accident outweighs the public's right to know."

¶85 On June 21, 1996, Ingraham filed a motion in limine seeking to specifically
"exclude all evidence of the blood alcohol test performed at St. Luke's Hospital at
5:30 a.m., October 13, 199[5]." The court denied Ingraham's motion in limine, noting
in part that "the State was charged with the responsibility of determining if there
was probable cause to believe a crime had been committed." The court concluded the
State had "a clear compelling need for any evidence tending to establish
[Ingraham's] blood alcohol content near the time of the accident." Moreover, the
court reasoned that simply because "the State had access to the 4:12 test does not
mitigate its need for any additional tests performed in the general time period
following the collision," and held that Ingraham's "privacy interest in the blood
alcohol test is outweighed by the State's compelling need to establish the facts as to
the collision."

¶86 Ingraham argues on appeal that the District Court abused its discretion in
denying his motion to exclude evidence of test results from the 5:30 a.m. blood
sample. More specifically, Ingraham asserts the court erred in concluding the State
demonstrated that its compelling need for those test results outweighed any
expectation of privacy he had in his own medical records, and in concluding the State
had demonstrated it had probable cause to justify the court's issuance of the
investigative subpoena.

¶87 In State v. Nelson (1997), 283 Mont. 231, 941 P.2d 441, decided by this Court
roughly one year after Ingraham's trial, we had occasion to redefine the standard
pursuant to which the State may obtain discovery of protected medical records. In
Nelson, we held

that in order to establish that there is a compelling state interest for the issuance of an
investigative subpoena for the discovery of medical records, the State must show probable
cause to believe that an offense has been committed and medical information relative to
the commission of that offense is in the possession of the person or institution to whom the

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subpoena is directed.

Nelson, 283 Mont. at 244, 941 P.2d at 449.

¶88 In Nelson, we held the State had probable cause to believe an offense had been
committed and that the defendant's medical records contained evidence of the
offense, where the facts indicated "that Nelson had consumed a couple of drinks
before the accident; that the road was bare and dry; that he ran into a guardrail;
that he suffered a broken jaw; and that he had received medical treatment at the
Glendive Medical Center." Nelson, 283 Mont. at 244, 941 P.2d at 450. Under the facts
in that case, we affirmed the District Court's order denying Nelson's motion to quash
the investigative subpoena, or in the alternative to suppress evidence. Nelson, 283
Mont. at 244, 941 P.2d at 450.

¶89 In the present case, the State's application for an investigative subpoena set forth
facts which demonstrate it had probable cause to believe an offense had been
committed and that Ingraham's medical records contained evidence of the offense. In
its application, the State asserted that Ingraham's vehicle "had crossed over the
centerline and struck a pickup truck," and indicated that "[w]itnesses at the scene
said that Ingraham appeared to be intoxicated, and the officers found a beer bottle
and several beer bottle caps in Ingraham's car." The State also noted that "two
prescription medicine bottles" were found in his car. Moreover, it is apparent from
the text of its application that the State was aware that Ingraham had received
treatment at St. Luke Hospital in the hours following the accident. Applying the
standard enunciated by this Court in Nelson, we conclude the State adequately
demonstrated it had a compelling state interest for the issuance of an investigative
subpoena. We accordingly affirm the District Court's orders denying Ingraham's
motion to limit the scope of the investigative subpoena, and denying his motion to
exclude evidence of test results from the 5:30 a.m. blood sample.

ISSUE 8

¶90 Did the District Court err in excluding a demonstrative videotape from evidence?

¶91 On appeal, Ingraham argues the District Court abused its discretion in excluding
from evidence a demonstrative video prepared by a defense expert to illustrate
Ingraham's theory as to how the accident occurred. Defense expert and accident

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reconstructionist Dr. Floyd Denman Lee, prepared the videotape to demonstrate that
the collision could have occurred had Ingraham swerved to the left in an attempt to
avoid Harriman-Larson's vehicle which he alleges was approaching in his lane of
traffic.

¶92 After viewing the videotape, hearing argument by the parties, and listening to
foundational testimony by Dr. Lee, the court ordered the demonstrative videotape
excluded from evidence. The court explained its decision to exclude the videotape as
follows:

I am not going to allow a video that focuses on one of a minimum six, maximum of 25,
equally-probable solutions to be thrust upon the State at the last minute. I find that this
particular video is, in fact, with regard to the distance of the vehicles, not even based upon
the testimony of any of the witnesses. I think it unduly emphasizes one of several equally
probable scenarios in this case.

I certainly think this witness is as free as a bird to testify about those. But to allow this sort
of visual display of one of them to the exclusion of the others, I think, means that its
probative value is outweighed by its prejudicial effect.

As well, I'm concerned about the fact that this is based upon statements of witnesses and
not testimony of witnesses, and there are certainly credibility calls for the jury to make
with regard to those differences. So I'm not going to allow it.

¶93 We review the District Court's evidentiary ruling for an abuse of discretion.
State v. Oatman (1996), 275 Mont. 139, 144, 911 P.2d 213, 216.

¶94 We have held that "[e]xhibits used for demonstration purposes are admissible if
they supplement the witness's spoken description of the transpired event, clarify
some issue in the case, and are more probative than prejudicial." Palmer by Diacon v.
Farmers Ins. Exchange (1988), 233 Mont. 515, 522-23, 761 P.2d 401, 406 (citing
Workman v. McIntyre Construction Co. (1980), 190 Mont. 5, 24, 617 P.2d 1281, 1291).
Moreover, "movies of reconstructions . . . are admissible if shown to be accurate and
relevant, and any change in conditions is adequately explained." Brown v. North Am.
Mfg. Co. (1978), 176 Mont. 98, 117, 576 P.2d 711, 722.

¶95 Thus, in determining whether to permit the introduction of demonstrative

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evidence, the court should consider a number of factors, including whether the
evidence would supplement a witness's description of events and clarify some issue in
the case. Palmer, 233 Mont. at 522-23, 761 P.2d at 406. Furthermore, the court
should consider whether the evidence is both accurate and relevant, whether any
change in conditions has been adequately explained, and whether the prejudicial
effect of the evidence outweighs its probative value. Palmer, 233 Mont. at 522-23, 761
P.2d at 406; Brown, 176 Mont. at 117, 576 P.2d at 722.

¶96 Despite Ingraham's assertions to the contrary, review of the record indicates that
the court did indeed consider whether the prejudicial effect of the videotape
outweighed its probative value, and expressed concern over admitting a videotape
which had been thrust upon the State at the last minute.

¶97 Although the court considered some of the requisite factors, it did not consider
all of the factors set forth in our decisions. In light of the fact that we are, in any
event, remanding the case for retrial on other grounds, we advise the court to
specifically address the factors discussed in Workman, Palmer, and Brown and
reconsider the question of whether the videotape may be admissible as demonstrative
evidence.

ISSUE 9

¶98 Did the District Court err in admitting expert testimony regarding blood alcohol
levels?

¶99 Ingraham argues the District Court erred in permitting State forensic scientist
Lynn Kurtz to testify on rebuttal as to the number of drinks Ingraham would have
had to consume to reach the BACs later tested, and as to Ingraham's specific BAC
level at the time of the accident. Ingraham argues that because Kurtz acknowledged
during the State's case-in-chief that he could not specifically determine Ingraham's
BAC at the time of the accident, the court erred in permitting him to do "exactly
what he . . . had agreed could not be done," and testify during rebuttal as to
Ingraham's specific BAC at the time of the accident. More specifically, Ingraham
argues the court "erred in permitting Mr. Kurtz to speculate that defendant's blood
alcohol level, tested at .07 at 4:12 a.m., was higher than .10 at the time of the
accident," and asserts Kurtz's opinion was dependent upon a number of unspecific
factors and unsupported by his earlier testimony.

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¶100 The State, in response, notes that Kurtz agreed on direct examination that he
could not estimate Ingraham's BAC at the time of the accident without certain
additional information. Once it had succeeded in getting the missing information into
the record, the State asserts, Kurtz was then entitled to rely on a shortened version of
the Widmark formula to estimate what Ingraham's BAC would have been at the
time of the accident, were he to have consumed the number of drinks to which he
testified. The State additionally argues Kurtz was entitled to estimate that Ingraham
would have had to consume sixteen Bud Lights to reach the BAC of .07 indicated by
the 4:12 a.m. blood test.

¶101 We review a district court's evidentiary ruling for an abuse of discretion. State
v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

¶102 During the State's case-in-chief, Kurtz indeed agreed that he did not know what
Ingraham's BAC was at the time of the accident. As illustrated by the following
exchange on redirect, however, Kurtz testified that, were there additional facts in the
record, he could more accurately estimate what Ingraham's BAC might have been at
the time of the accident:

Q (County Attorney): And the same thing with the Defendant having a .077 BAC at
the time he's tested at 4:12. We don't know where he was, based upon the
information that we have right now at the time of the wreck; isn't that correct?

A (Kurtz): That's also correct.

Q: Now, if we had the information concerning what he had in his stomach, the
number of drinks that he alleges he had, the types of drinks he alleges he had, you
stated that you can make some assumption concerning body water content, during
direct examination, food type, food quality. [If t]hat information was provided to us
and put into evidence, do you think that you can make an educated guess, within a
reasonable degree of scientific certainty or probability, as to what his BAC could
have been at the time of the wreck?

A: I could more fully demonstrate the potential BACs at the time of the incident,
given that extra information.

Q: Which is not in the record as of yet, to your knowledge.

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A: To my knowledge, no.

¶103 Following Kurtz's initial testimony, much of the information upon which Kurtz
explained an estimate of Ingraham's BAC at the time of the accident depended,
entered the record. For example, Ingraham testified as to the number and type of
alcoholic beverages he consumed in the hours preceding the accident, and described
the food he consumed over the course of the evening. Moreover, he agreed that the
weight reflected on his driver's license might be accurate at 170 pounds.

¶104 Although Ingraham argues it was error for the court to permit Kurtz to testify
that Ingraham's BAC was greater than .10 at the time of the accident, a close review
of Kurtz's testimony on rebuttal indicates he actually made no such statement. The
transcript indicates that the State, on rebuttal, asked Kurtz to assume that
Ingraham's eating and drinking history on the night of the accident was as reflected
in his testimony. The State additionally asked Kurtz to assume Ingraham weighed
170 pounds. In response to the State's hypothetical question, Kurtz stated he would
have expected to see a BAC of only .018 at 4:15 a.m. Kurtz also testified that, for
Ingraham's BAC to reach .077 by 4:12 a.m., he would have had to consume
"approximately 16 drinks."

¶105 Review of the transcript indicates that, by the time the defense rested, the
record contained evidence of those factors identified by Kurtz as necessary in order
for him to estimate the number of drinks Ingraham would have had to consume to
reach a BAC of .077 by 4:12 a.m., and to estimate Ingraham's BAC at the time of the
accident. Although Ingraham takes issue with the shorthand version of the Widmark
formula upon which Kurtz relied while testifying, the record indicates that a number
of professionals in Kurtz's field rely upon the same formula. Moreover, we note that
Kurtz offered an in-depth explanation of his formula for the jury's consideration,
and that Ingraham's counsel extensively cross-examined Kurtz on his shortened
formula. Based on the foregoing, and having reviewed the record, we conclude the
District Court did not abuse its discretion in permitting Kurtz to estimate the
number of drinks that Ingraham would have had to consume on the night of the
accident and to estimate Ingraham's BAC level at the time of the accident.

ISSUE 10

¶106 Did the District Court err in admitting testimony by paralegal Jeanne

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Windham?

¶107 Ingraham argues the District Court erred in permitting paralegal Jeanne
Windham to testify as to statements Ingraham made to her about the accident.
Ingraham asserts that Windham was one of his law firm's employees, and argues the
content of his conversations with her about the accident was protected by the
attorney-client privilege and constituted privileged work product. Moreover,
Ingraham asserts the court erred in admitting rebuttal testimony regarding
additional conversations overheard by Windham, but which did not tend to
counteract new matter introduced by the defense.

¶108 The State, in contrast, argues that neither the attorney-client privilege nor the
work product rule apply to protect the content of conversations between Ingraham
and Windham in the aftermath of the accident. The State additionally asserts that
Windham's testimony on rebuttal was proper, and urges the court did not err in
overruling Ingraham's objections to its admission.

¶109 We review the District Court's evidentiary ruling for an abuse of discretion.
State v. Gollehon (1993), 262 Mont. 293, 301, 864 P.2d 1257, 1263.

A. Attorney-client privilege

¶110 Ingraham first asserts the content of his conversations with Windham was
protected by the attorney-client privilege, and that the District Court thus erred in
overruling his objections to Windham's proposed testimony. Ingraham argues that,
upon making the telephone call to his father on the night of the accident, he became a
client of the Ingraham Law Office. Ingraham asserts that, because Windham worked
as a paralegal for the Ingraham Law Office at the time of the accident, the attorney-
client privilege extends to her and protects any statements he made to her regarding
the accident.

¶111 In support of his argument, Ingraham points to § 26-1-803(1), MCA, pursuant
to which "[a]n attorney cannot, without the consent of his client, be examined as to
any communication made by the client to him or his advice given to the client in the
course of professional employment." Ingraham asserts his disclosures to Windham
were made "in the course of professional employment," and thus fall within the
protection afforded by the attorney-client privilege.

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¶112 Over Ingraham's objection, the District Court permitted Windham to testify,
concluding that it did not believe that the communication that took place between the
Defendant and Ms. Windham on October 13th, 1995, . . . at approximately six o'clock
p.m., can reasonably be construed as communication made by a client to the
attorney, as the statute defines in the course of professional employment.

There are several factors that lead me to that conclusion. The first one is that there's no
indication that Greg Ingraham had retained Ingraham Law Office as his counsel with
regard to this accident. There certainly is no indication, even if that had happened, that
Ms. Windham had any reason, whatsoever, to believe that that had happened. And I have
no reason to believe that Greg Ingraham believed that that had happened.

Even if it had, Ms. Windham left her professional employment when she left that office at
five o'clock that day, on her own volition, to visit the Defendant as a friend. The only
reason she received communications from the Defendant that night is because she agreed,
as a friend, to transport him to her house so that she could take care of him. And it's
inconceivable to me that that can be construed to be in the course of professional
employment. The Defendant then requested her, during that visit, to go to the accident
scene, apparently, and said certain things to her. That doesn't necessarily become an
attorney-client communication just because Ms. Windham happens to have been an
independent contractor for the Defendant at that time. I think it's a factor that she wasn't
paid for that time that she spent with him. . . . And so I don't believe that this could
reasonably have been construed by the Defendant as a conversation by a client with an
attorney or a member of his attorney's office. And so I'm going to deny the motion to
exclude her testimony.

¶113 Windham testified in chambers that, although she worked for Gregory
Ingraham as an independent contractor, she performed no paralegal services for
Lloyd Ingraham. She also testified that she had done nothing to assist Gregory
Ingraham in defending this case, and that to her knowledge, there was no file on this
case at the Ingraham Law Firm. Our review of the pertinent testimony indicates that
Ingraham's conservations with Windham were purely personal and not in the course
of a professional relationship. Having reviewed the record, we conclude the District
Court did not abuse its discretion in concluding that the content of Ingraham's
conversations with Windham on the day of the accident were not protected by
attorney-client privilege and in admitting her testimony.

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B. Work-product

¶114 On June 18, 1996, Ingraham filed a motion to dismiss all the charges brought
against him on "grounds of violation of the attorney-client privilege and work
product rule." The court denied Ingraham's motion, concluding in pertinent part
that the work product doctrine did not apply to conversations Ingraham had with
Windham in the aftermath of the accident. In so concluding, the court reasoned that

[t]he logical extension of this argument would be that no statements of attorney-parties to
litigation would ever be admissible. There was never any indication that the Defendant
was representing himself in connection with this matter. In fact, in support of his argument
concerning the attorney-client privilege, Defendant contends that the relationship was
established between himself, as client, and his father, as attorney, within minutes after the
motor vehicle collision that led to these charges. There is no support for the proposition
that the information shared by Defendant with his employees should be excluded under
the work product doctrine.

Having reviewed the record, we agree with the District Court's conclusion on this
issue and, absent an abuse of discretion, we will not disturb its decision to admit
Windham's testimony. C. Rebuttal testimony

¶115 Finally, Ingraham argues Windham's testimony on rebuttal was improper.
Ingraham notes that, on rebuttal, Windham testified as "to what she heard Mr.
Ingraham say when he described the accident to other persons, when his father was
not present." Ingraham asserts that, although the court agreed the testimony did not
constitute proper rebuttal, it nevertheless allowed that testimony. For the court to do
so, Ingraham argues, was an abuse of discretion.

¶116 Contrary to Ingraham's assertion, the court, in fact, concluded that Windham's
testimony was appropriate rebuttal, even though it did not directly refute
Ingraham's version of his conversation with Windham on the date of the collision.
Having reviewed the record, we hold the District Court did not abuse its discretion in
so concluding, and in allowing Windham's testimony on rebuttal.

ISSUE 11

¶117 Did the District Court err in ordering the parties not to contact the jurors after

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they rendered their verdict?

¶118 Ingraham's counsel asserts that, following the verdict in this case, he learned of
the possibility "that the jury may have received extraneous prejudicial information,
resulting from a highly prejudicial conversation in a juror's presence." On August
16, 1996, Ingraham filed a motion for a new trial, on the grounds of alleged juror
misconduct. On October 9, 1996, the District Court ordered that counsel refrain
from contacting the jurors in this case. Ingraham filed a second motion for a new
trial on October 24, 1996, and additionally asked that the court lift its "order
prohibiting counsel from speaking with trial jurors." On December 31, 1996, the
District Court issued its findings of fact, conclusions of law, and order denying
Ingraham's motions for a new trial. On appeal, Ingraham argues the court was
without authority to "issue a blanket order precluding attempted contact with
nonparty witnesses," and asserts the court's order that he not contact the jurors
prevented a full investigation into allegations of juror misconduct.

¶119 In light of our determination that Ingraham is entitled to a new trial with
respect to the charges of negligent homicide and criminal endangerment on other
grounds, we need not reach the merits of this issue.

ISSUE 12

¶120 Did the District Court commit prejudicial cumulative error, thereby entitling
Ingraham to a new trial?

¶121 We need not address the question of whether Ingraham is entitled a new trial
pursuant to the cumulative error doctrine in light of our conclusion that the District
Court committed reversible error in admitting evidence of the medications detected
in Ingraham's system and found in his car, and in admitting evidence of warnings
generally given along with those medications.

CONCLUSION

¶122 We hold the District Court erred in admitting evidence of medications detected
in Ingraham's system and found in his car. We hold the District Court also erred in

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admitting evidence of warnings generally given with the various medications.

¶123 We affirm the District Court's decision admitting expert testimony regarding
blood alcohol levels and in admitting testimony by paralegal Jeanne Windham. We
also affirm the District Court's orders denying Ingraham's motion to limit the scope
of the investigative subpoena, and denying his motion to exclude evidence of test
results from the 5:30 a.m. blood sample.

¶124 We need not address whether there exists sufficient evidence of record to
support Ingraham's convictions for criminal endangerment and negligent homicide,
and need not discuss the cumulative error doctrine. Moreover, we need not address
the question of whether the court erred in ordering the parties not to contact the
jurors after they rendered their verdict. Finally, we conclude that Ingraham's
argument that convictions for negligent homicide and criminal endangerment are
legally inconsistent is moot.

¶125 We advise the District Court, on retrial, to comply with our decision in
Lambert in instructing the jury as to the definition of knowingly. Moreover, we
advise the court to reconsider the question of whether the videotape is admissible as
demonstrative evidence in light of the specific factors set forth in Palmer, Workman,
and Brown.

¶126 Based on the foregoing, we vacate the judgment of the District Court and
remand this case for retrial on charges of negligent homicide and criminal
endangerment.

/S/ JIM REGNIER

We Concur:

/S/ JAMES C. NELSON

/S/ WILLIAM E. HUNT, SR.

/S/ W. WILLIAM LEAPHART

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Chief Justice J. A. Turnage and Justice Terry N. Trieweiler did not participate in
this opinion.

Justice Karla M. Gray concurs and dissents.

¶127 I concur in the Court's opinion on all issues except issue 8. On that issue, which
is whether the District Court erred in excluding a demonstative videotape from
evidence, I respectfully dissent.

¶128 My first concern is with the Court's decision to remand this issue for
reconsideration under our cases involving the admissibility of demonstrative
evidence. By failing to address and resolve this issue now, with a full record and an
articulated decision by the District Court before us, the Court merely leaves an
unresolved issue for potential appeal after retrial. This course strikes me as unwise,
particularly in light of the fact that the Court has resolved all other issues on appeal--
including issue 7, which could have been remanded for reconsideration in light of
Nelson, which was decided after the present case had been tried. In my view, the
Court took the wise approach in deciding issue 7--rather than remanding it--in order
to avoid the possibility of leaving a potentially appealable issue for resolution after
retrial. The Court should follow the same wise course on issue 8.

¶129 Moreover, I suspect that the Court's failure to resolve the issue, and its
directive that the District Court reconsider its decision, may be a backhanded way of
telling the District Court that it erred in this regard and should avoid doing so in the
next trial. If it is the Court's decision that the trial court erred, it should say so. If
not, it should say so. To leave the District Court in such a quandary seems
inappropriate.

¶130 I would address issue 8 on the merits and affirm the District Court. The Court
faults the trial court for failing to consider all of the factors set forth in Workman,
Brown and Palmer. I would not. We have never held that those three cases, or any
others, create a mandatory laundry list of factors to be considered to the exclusion of
any others. Nor is the Court's list of relevant cases complete. If the Court desires the
trial court to review each and every case addressing the admissibility of
demonstrative evidence, and articulate its decision on each factor mentioned therein,

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I suggest that it asks too much. If that is to be the trial court's burden, however, the
Court should at least include in its list cases such as State v. Crazy Boy (1988), 232
Mont. 398, 757 P.2d 341, which concludes that the exclusion of cumulative
demonstrative evidence does not constitute reversible error.

¶131 Furthermore, it is my view that the District Court sufficiently addressed the
factors in Workman, Brown and Palmer, as well as several other factors appropriate
to the circumstances here. In this regard, I observe that the Court has neglected to
include the entirety of the District Court's rationale in excluding the videotape and,
to set the record straight, I note that--in addition to the reasons set forth in the
Court's opinion--the District Court also determined that the videotape would not
assist the jury and, indeed, would mislead the jury by giving visual emphasis to only
one of several equally probable scenarios.

¶132 In Workman, 190 Mont. at 24, 617 P.2d at 1291, we stated that the admissibility
of demonstrative exhibits depends "on whether it would be helpful to permit the
witness to supplement his [verbal] description by their use." Presumably our
reference to "helpful" meant helpful to the jury. Here, the District Court determined
in that regard that the videotape would not assist the jury, but would mislead it. We
also concluded in Workman (190 Mont. at 24, 617 P.2d at 1291) that demonstrative
evidence is inadmissible when it does not illustrate or make more clear some issue
(that is, when the evidence is irrelevant or immaterial) or when the evidence is "of
such a character as to prejudice the jury." Here, the District Court effectively
determined that the videotape would prejudice the jury by overemphasizing one of a
number of equally probable scenarios.

¶133 In Brown , 176 Mont. at 117, 576 P.2d at 722, we required that demonstrative
movies be "accurate and relevant." Here, the District Court determined that the
distance depicted on the videotape was not accurate in that it was not based on the
testimony of any of the witnesses. The record reflects that the District Court was
correct in so determining, because Dr. Lee used a 1/5 mile distance in the videotape
and the witness’ testimony was "less than ½ mile," while his interview statement--on
which Dr. Lee relied--gave the distance as 1/4 to ½ mile.

¶134 In Palmer, 233 Mont. at 522-23, 761 P.2d at 406, we stated a 3-part test for the
admissibility of demonstrative evidence: 1) the evidence must supplement the
witness' spoken description of the transpired event; 2) it must clarify some issue in

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the case; and 3) it must be more probative than prejudicial. It is true that, in this
case, the District Court did not articulate precisely whether the first two parts of the
Palmer test were met. The Court's suggestion to the contrary notwithstanding,
however, all three parts of the Palmer test clearly need not be addressed if the trial
court makes a determination under the third part that the demonstrative exhibit is,
in fact, more prejudicial than probative. The Court correctly notes in this regard
that the District Court did consider whether the prejudicial effect of the videotape
outweighed its probative value and concluded that it did.

¶135 On this record, it is clear that the District Court properly considered and
addressed the factors set forth in Workman, Brown and Palmer for admissibility of
demonstrative evidence. In addition, the District Court could properly have
determined--under Crazy Boy--that the videotape was merely cumulative to Dr.
Lee's testimony about the one scenario depicted therein. Indeed, the court implicitly
did so when it determined that to use the videotape to emphasize only one of the
probable scenarios to which Dr. Lee testified would mislead the jury.

¶136 I would conclude that the District Court did not abuse its discretion in
excluding the demonstrative videotape. Therefore, I dissent from the Court's opinion
on issue 8.

/S/ KARLA M. GRAY

Justice James C. Nelson specially concurs.

¶137 I concur with and have signed the Court's opinion. I write separately only
because I strongly disagree with Justice Gray's articulated suspicion that our failure
to resolve Issue 8 and our directive to the trial court to reconsider its decision on this
issue "is a backhanded way of telling the District Court that it erred." That was not
my thinking when I voted for and signed the Court's decision and I do not believe
that was the rationale of any of the other justices in the majority.

¶138 Obviously, the videotape was an important piece of evidence in Ingraham's
presentation of his defense as far as he was concerned. Equally obvious, is that the
State, considered the videotape damaging to its case. The point is, however, that
Ingraham is entitled to have this evidence admitted on retrial if he can satisfy the
Workman, Palmer and Brown criteria. If he cannot, then the State is entitled to keep

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this evidence from the jury. My concern and that of the majority was and is simply
that, whatever decision is made on retrial, the court's discretion must be exercised
within the parameters of a full and complete consideration of the factors that this
Court, in our prior decisions, has stated are controlling before the admission or
rejection of this sort of evidence. In my view, our opinion should not be read as
standing for anything more or less than that, nor should it be read as a backhanded
reversal of the District Court.

¶139 Finally, if the dissent's concern is that resolving, rather than remanding, this
issue will prevent a second appeal if Ingraham is again convicted, then I suggest that
hope has triumphed over experience.

/S/ JAMES C. NELSON

Justice Jim Regnier concurs in the foregoing special concurrence.

/S/ JIM REGNIER

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