State v. Krause

403 Mont. 105

480 P.3d 222

2021 MT 24

STATE of Montana, Plaintiff and Appellee,

v.Clinton Scott KRAUSE, Defendant and Appellant.

DA 19-0042

Supreme Court of Montana.

Submitted on Briefs: December 9, 2020

Decided: February 2, 2021

For Appellant: Chad Wright, Appellate Defender, Kristina L. Neal, Assistant Appellate Defender, Helena, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Tammy K. Plubell, Assistant Attorney General, Helena, Montana, Joshua A. Racki, Cascade County Attorney, Jennifer L. Quick, Deputy County Attorney, Great Falls, Montana

Justice Laurie McKinnon delivered the Opinion of the Court.

¶1 Appellant, Clinton Scott Krause, appeals his conviction entered in the Eighth Judicial District Court, Cascade County. A jury convicted Krause of Driving Under the Influence of Alcohol (DUI), 4th or subsequent offense, after the District Court denied Krause's motion to dismiss and motion for mistrial. We affirm and address the following issues on appeal:

1. Whether the District Court abused its discretion when it denied Krause's motion to dismiss for insufficient evidence.

2. Whether the District Court abused its discretion when it denied Krause's motion for mistrial.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On September 27, 2017, at about 9:40 p.m., Officer Meek of the Great Falls Police Department was dispatched to the area of 6th Avenue South and Chowen Springs Loop in Great Falls, Montana, based on a report that there was a male slouched over the steering wheel of a vehicle. Officer Meek located a 2009 silver Nissan Ultima near the location dispatch provided. The location was west of the intersection of Chowen Springs Loop and 6th Avenue South near Parkdale. Parkdale is public housing that the Great Falls Housing Authority owns and rents to income-eligible members of the public.

¶3 When Officer Meek reached the vehicle, he observed a male sitting in the driver's seat of the vehicle, leaned back, with his head falling over his chest. The male was not moving and did not respond to Officer Meek shining a flashlight on his face. Officer Meek later identified the male as Krause. Officer Meek opened the car door and asked Krause if he was okay. When he opened the door, Officer Meek smelled a strong odor of alcohol and observed that Krause's face and eyes were droopy and his eyes were watery. Officer Meek asked Krause where he had come from and Krause responded, "The Ho." Officer Meek confirmed that Krause meant the Hi-Ho Tavern on 26th Street South and 10th Avenue South in Great Falls. Krause's speech was heavily slurred, and the odor of alcohol was stronger when Krause spoke.

¶4 Officer Meek observed that the Nissan Ultima was a push-to-start vehicle, meaning it did not need a key in the ignition to start. Rather, for the vehicle to start, a key fob or "smart key" needed to be inside the car or within close proximity when the push starter was activated. Officer Meek asked Krause if he had a key to start the vehicle. Krause responded that he did not. Krause indicated that the key fob for the vehicle was in an apartment about 150 feet away. The vehicle was registered in Krause's name, and the address listed on the registration matched the Parkdale apartment 150 feet away. Officer Meek asked Krause to push the starter to verify it would not start. Krause lightly rubbed the ignition button twice, but Officer Meek could see that he was not actually pushing it. Officer Meek, again, requested that Krause push the ignition button. When Krause finally applied some force, the vehicle started. Officer Meek asked Krause to turn the vehicle back off and to step outside so he could investigate whether Krause was impaired. When Krause stepped out of the vehicle, the key fob was on the driver's seat. Officer Meek had Krause perform field sobriety tests. Krause displayed several indicators of impairment and was ultimately arrested for DUI. Officer Meek asked Krause to provide a blood sample to determine his blood alcohol content and Krause refused. Officer Meek obtained a search warrant for a blood sample and took Krause to the hospital for the blood draw. Krause's blood alcohol content measured 0.162. Krause was subsequently charged with DUI, 4th or subsequent offense, in violation of § 61-8-401, MCA ; Driving Without a Valid Driver's License, in violation of § 61-5-102, MCA ; and Failure to Carry Proof of Liability Insurance, in violation of § 61-6-302, MCA. The matter proceeded to a jury trial.

¶5 At trial, Sarah Cole testified that, on the night in question, she was living at the apartment listed on the vehicle's registration. Cole and Krause have four children together, but Cole testified that Krause was not living with her on September 27, 2017. Cole maintained that Krause lived with his mother somewhere near Albertsons. Cole explained that she drove the Nissan Ultima but was not the registered owner of the vehicle. Cole said Krause bought the vehicle for her and their children and she was the only one who drove the vehicle. When Officer Meek found Krause, the vehicle was parked in a permitted parking spot near Cole's apartment. Cole had a sticker on the vehicle authorizing her to park in one of the parking spots at Parkdale, however, she was not assigned a specific parking spot. A sign is placed at the parking stall, which informs the public the parking stall is for tenants only and violators will be towed at their own expense. Anyone without a permit is not supposed to park in the parking spaces. Guests visiting Parkdale can park on the nearby street.

¶6 Cole testified that between 4:30 and 5:00 p.m. on the night in question, she was making dinner for her kids when Krause knocked on her apartment door. Krause was visibly intoxicated so she would not let him inside but told Krause he could go to the car and sleep it off because his residence was so far away. Cole maintained that she unlocked the car with her key fob from inside her apartment, she saw the headlights flash, and watched Krause get into the car. Cole testified that Krause did not have a key fob for the car. She maintained, however, that she had two key fobs and would sometimes leave one in the car console. During Cole's direct examination, Cole stated that her car would not sound an alarm if she left a key fob in the car and that she had done so before. During Cole's cross-examination, the following exchange occurred between the prosecutor and Cole:

Q. And you said that you could see the lights flash when you unlocked the car?

A. Yes.

Q. And you visibly observed that?

A. Yes.

Q. Okay. And so, that would mean that it would have been locked previously.

A. Yes.

Q. And so—can I see your fob?

A. Yeah.

Q. I don't need to touch it, I just want to look at it. And that's a Nissan Ultima?

A. Yes.

Q. Is that correct?

A. Yes.

Q. A 2009. Is that correct?

A. Yes.

Q. And you stated that you can leave a fob in the Nissan and still lock the vehicle?

A. Yes.

Q. Okay. Do you understand what the penalties are for perjury?

A. Yes.

Q. Okay. And I'm just looking at Nissan's website and it says that the bonus—

¶7 Defense counsel objected on hearsay grounds. The District Court asked the State what its intention was, and the prosecutor responded she intended to use the Nissan website to impeach Cole regarding Cole's statement that she could lock the vehicle with a key fob while another key fob was inside the vehicle. The court asked the prosecutor the grounds for which the State was seeking to introduce the website information, and the prosecutor responded, "To show that she's given a materially false statement regarding the capabilities of a Nissan Ultima." The District Court excused the jury. Outside the presence of the jury, defense counsel questioned Cole, who maintained that she could leave one key fob in the car without the car sounding an alarm. She stated, "maybe it wasn't locking ... [b]ut when you unlock it, it's always going to flash those lights whether it's locked or not." Cole stated she was willing to demonstrate this for the jury but explained that only one key fob was working. The court sustained defense counsel's objection and ruled that any questioning that referenced the Nissan website would be based upon inadmissible hearsay. When the jury returned, the following exchange occurred during cross-examination:

Q. Ms. Cole, regarding the key fob that was left in your vehicle and the key fob that you said you unlocked the car with from the house about 150 feet away, isn't it true that there's a lockout feature on your vehicle? Are you aware of that?

A. I was not aware that there was, no.

Cole stood by her testimony and stated that she would show the jury that her key fob would allow her to lock another key fob in the car, however only one of her key fobs was currently working.

¶8 Before closing arguments, defense counsel moved to dismiss the DUI charge for insufficient evidence, arguing that the State had failed to meet its burden of proving that Krause was on a "way of this state open to the public."¹ Defense Counsel argued the parking stalls were private parking spots for Parkdale residents only and not fitted for the public because a permit was required, and violators would be towed at the owner's expense. The court considered Krause's argument but specifically found that the parking stall was not "segregated by a gate or otherwise inaccessible from a physical standpoint." The court concluded that, based on jurisprudence established by this Court, the parking space in question was a "way of this state open to the public." The court denied the motion to dismiss.

¶9 Defense counsel also moved the court to declare a mistrial based on prosecutorial misconduct. Defense counsel described Cole's and the jury's reactions to the prosecutor's question to Cole about whether she understood the penalties of perjury: "I saw a reaction on Sarah Cole's face. It looked to me like she became a shrinking violet. And I also saw something of a reaction on the ... jury's faces." Defense counsel argued...