State v. Christiansen

September 14 2010

DA 09-0501

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 197

STATE OF MONTANA,

Plaintiff and Appellee,

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

4
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