September 14 2010
DA 09-0501
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 197
STATE OF MONTANA,
Plaintiff and Appellee,
v.
KEVIN LEE CHRISTIANSEN,
Defendant and Appellant.
APPEAL FROM: District Court of the Twelfth Judicial District,
In and For the County of Hill, Cause No. DC 08-048
Honorable John C. McKeon, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Jeremy S. Yellin, Attorney at Law, Havre, Montana
For Appellee:
Steve Bullock, Montana Attorney General; Sheri K. Sprigg, Assistant
Attorney General, Helena, Montana
Gina Dahl, Hill County Attorney, Havre, Montana
Submitted on Briefs: August 17, 2010
Decided: September 14, 2010
Filed:
__________________________________________
Clerk
Justice Michael E Wheat delivered the Opinion of the Court.
¶1 After a previous trial that resulted in a hung jury, a jury in the Twelfth Judicial
District Court, Hill County, convicted Kevin Lee Christiansen of his fourth Driving Under
the Influence offense. Christiansen appeals his conviction. The sole issue is whether the
District Court’s instruction on “actual physical control” at Christiansen’s second trial
prejudicially affected Christiansen’s substantial rights and warrants reversal.
BACKGROUND
¶2 In May 2008, Deputy County Sherriff Geer found Christiansen sleeping in his vehicle,
which was parked in the parking lot of a bar in Havre. Christiansen’s pickup was running
and the brake lights were activated. Geer attempted to wake Christiansen by pinching him
several times. When Christiansen finally awoke, he responded that his name was “Coors.”
Eventually, Geer arrested Christiansen for driving under the influence. Christiansen does not
dispute that he was very intoxicated.
¶3 The case proceeded to a jury trial in December 2008. Prior to trial, the State proposed
Instruction 5, that defined “actual physical control” as: “[T]he Defendant is in actual
physical control of a motor vehicle if the Defendant is not a passenger and is in a position to,
and has the ability to, operate the vehicle in question.” This instruction essentially mirrored
Montana’s Model Criminal Jury Instruction 10-106. At the close of evidence, the State
proposed two jury instructions defining “physical control of a motor vehicle.” The State’s
proposed Instruction 11 provided: “ ‘Actual physical control’ means that a person has
existing or present bodily restraint, directing influence, domination or regulation of a
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vehicle.” The State’s proposed Instruction 12 provided: “A motorist remains in a position to
regulate a vehicle while asleep behind the steering wheel of a vehicle.”
¶4 The District Court rejected the State’s proposed Instructions 11 and 12, reasoning:
“The correct statement of the law is represented by State’s Proposed Instruction Number 5. .
. . As I see it, it is the application of that law as stated in State’s Proposed Instruction
Number 5, that resulted in the statements given in State v. Hudson.” The trial resulted in a
hung jury.
¶5 The case was re-tried in June 2009. Prior to trial, the State proposed jury instructions
on “actual physical control” identical to Instructions 11 and 12 from the previous trial. On
the morning of the second trial, Christiansen told the District Court that his proposed jury
instructions on “actual physical control” would be the same as Instruction 5 from the first
trial. During the settlement of instructions, the District Court rejected both Christiansen’s
and the State’s proposed instructions, stating:
I realize the defense proposed number is a pattern instruction. However, I find
it to be confusing and I believe that to fully and fairly instruct this jury on the
law, I’m going to need a different instruction, as it relates to the meaning of
the term actual physical control. . . . I believe that the Hudson decision more
accurately relies on that 1958 decision of Ruona . . . which is also cited in the
State’s proposed [instruction].
I know that Taylor is referenced in the Hudson case. And in the Hudson case
you will find in Paragraph 13 of the Hudson decision, that the Robinson case is
cited for the very proposition that is contained in [the State’s proposed
instruction].
...
After considering all of these cases, I believe the better instruction would be
the Defendant is actually in actual physical control of a vehicle, if the
Defendant is not a passenger and has an existing or present bodily function
that exercises restraint or directs influence, domination or regulation of a
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motor vehicle.
The court’s definition was given to the jury as Instruction 9. During deliberations, the jury
asked for a clearer definition of physical control, requested a legal dictionary and a legal
definition of “domination” and “regulation,” indicated that they could not reach a decision,
and had difficulty understanding what “present” and “existing” meant. The jury eventually
convicted Christiansen of driving while under the influence of alcohol.
¶6 Christiansen appeals, claiming that the District Court committed reversible error
because its instruction so confused the jury that it prejudicially affected his substantial right
to a fair trial. Christiansen contends that the correct interpretation of the law is reflected in
the instruction that the court gave to the jury at the first trial because it is the same as the
Model Criminal Jury Instruction and is supported by our case law. Christiansen also argues
that the jury instruction used at the first trial was the law of the case at the second trial
because the District Court initially said it was the correct law.
STANDARD OF REVIEW
¶7 A district court’s decision pertaining to jury instructions are reviewed for an abuse of
discretion. State v. Archambault, 2007 MT 26, ¶ 25, 336 Mont. 6, 152 P.3d 698. While the
district court’s discretion is broad, it is ultimately restricted by the overriding principle that
jury instructions must fully and fairly instruct the jury regarding the applicable law. Id. The
instructions must prejudicially affect the defendant’s substantial rights to constitute
reversible error. State v. Hudson, 2005 MT 142, ¶ 10, 327 Mont. 286, 114 P.3d 210. The
purpose of jury instructions is to guarantee decisions consistent with the evidence and the
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law, which can be accomplished when the instructions are as plain, clear, concise, and brief
as possible. Busta v. Columbus Hosp., 276 Mont. 342, 373, 916 P.2d 122, 140 (1996).
DISCUSSION
¶8 Did the District Court’s instruction on “actual physical control” at Christiansen’s
second trial prejudicially affect Christiansen’s substantial rights?
¶9 Section 61-8-401(a), MCA, makes it unlawful for a person who is 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.” We have held that “actual physical control” means “existing or present
bodily restraint, directing influence, domination or regulation, of an automobile.” State v.
Ruona, 133 Mont. 243, 248, 321 P.2d 615, 618 (1958). More recently, this Court held that
the Model Criminal Jury Instruction that defines “actual physical control” as “[the individual
is] in a position to, and [has] the ability to operate the vehicle in question” is an accurate
reflection of the law as developed by judicial interpretation. Hudson, ¶ 15 (citing State v.
Ruona, 133 Mont. 243, 321 P.2d 615; State v. Taylor, 203 Mont. 284, 661 P.3d 33 (1983);
State v. Ryan, 229 Mont. 7, 744 P.2d 1242 (1987); Turner v. State, 244 Mont. 151, 795 P.2d
982 (1990)).
¶10 The District Court countermanded its decision from the first trial and concluded that
its initial instruction about “actual physical control” was confusing and did not fairly and
fully instruct the jury, even though the evidence presented and the issues at both trials was
substantially the same. The court explained that because Hudson relied on Ruona, the
definition from Ruona made the better instruction. We disagree. The instruction from the
Model Criminal Jury Instruction—and the one used at the first trial—more clearly, concisely
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and accurately stated the law as developed by our judicial interpretation since Ruona. See
Hudson, ¶ 15. The District Court’s instruction did not clearly state the law, which resulted
in the jury being confused about what it meant for Christiansen to be in actual physical
control of his vehicle. This prejudicially affected Christiansen’s substantial right to a fair
trial.
CONCLUSION
¶11 The District Court committed reversible error when it instructed the jury at
Christiansen’s second trial that “the Defendant is in actual physical control of a motor
vehicle if the Defendant is not a passenger, and has an existing or present bodily function
that exercises restraint or directs influence, domination, or regulation of a vehicle.”
¶12 Reversed and remanded for a new trial.
/S/ MICHAEL E WHEAT
We Concur:
/S/ JAMES C. NELSON
/S/ BRIAN MORRIS
/S/ PATRICIA COTTER
/S/ JIM RICE
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