State v. Wilke

497 P.3d 1185 (Table)

STATE of Montana, Plaintiff and Appellee,

v.Brice William WILKE, Defendant and Appellant.

DA 20-0074

Supreme Court of Montana.

Submitted on Briefs: October 13, 2021

Decided: November 16, 2021

For Appellant: Ryan P. Archibald, Office of State Public Defender, Hamilton, Montana

For Appellee: Austin Knudsen, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Anne M. Lewis, Law Student Intern, Helena, Montana Leo Gallagher, Lewis and Clerk County Attorney, Helena, Montana

Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating Rules, this case is decided by memorandum opinion and shall not be cited and does not serve as precedent. Its case title, cause number, and disposition shall be included in this Court's quarterly list of noncitable cases published in the Pacific Reporter and Montana Reports.

¶2 Defendant and Appellant Brice William Wilke (Wilke) appeals from the December 12, 2019 Judgment and Commitment issued by the First Judicial District Court, Lewis and Clark County, after a jury convicted Wilke of felony DUI following a September 9-10, 2019 trial. We affirm.

¶3 On February 10, 2019, Dan Nelson (Nelson) was blowing snow off his driveway on Stallion Ridge Drive in Lewis and Clark County during the early afternoon when he saw a blue SUV drive past him. Nelson saw a driver and no passengers in the vehicle. Nelson continued snow blowing his driveway, and when he looked up again he saw the vehicle had gotten stuck in a snowbank on the side of the road. Nelson watched the vehicle unsuccessfully try to get unstuck and then continued with his chores. He did not see anyone exit the vehicle. A short while later, Nelson saw his neighbor, Russell Lay (Lay), and two of his children shoveling out the vehicle from the snowbank. Lay had seen the vehicle stuck in the snowbank when he was driving home from church, but did not see anyone inside, and decided to shovel out the vehicle so it would be free when the driver returned. After about 20-30 minutes of shoveling, Lay and his children noticed a man sleeping in the back seat. Lay knocked on the window to get his attention, but the person did not respond, though Lay could see the man was breathing. Lay and his children then spent a few minutes shoveling some snow in front of a neighbor's house before returning home. While shoveling in front of the neighbor's house, Lay briefly observed a man outside the vehicle, but did not see him get out or get back in. After returning to his house, Lay called law enforcement to inform them of the stuck vehicle with the man inside.

¶4 Montana Highway Patrol Trooper Amanda Villa was informed by dispatch that a vehicle was parked off the side of the road on Stallion Ridge Drive with a man inside who would not wake up. At the time, the temperature was eleven degrees below zero. Trooper Villa responded to the scene at approximately 3:30 p.m. to perform a welfare check. Once she got to the vehicle, Trooper Villa could see two dogs and a person, later identified as Wilke, in the backseat of the vehicle. Trooper Villa attempted to wake Wilke up by knocking on the windows, but he did not respond. Trooper Villa then opened the unlocked door and continued to try to wake Wilke by calling to him and rubbing his shoulder. Immediately upon opening the door, Trooper Villa could smell a strong alcoholic odor. Eventually, Wilke responded by mumbling and starting to move. Trooper Villa noticed the keys to the vehicle were still in the ignition, Wilke's eyes were watery and bloodshot, and Wilke's movements were very slow and lethargic. Because of the cold and his condition, Trooper Villa called in medical personnel to check on Wilke.

¶5 Sergeant Robert Kinyon of the Lewis and Clark County Sheriff's Office (LCSO) then arrived on scene and spoke to Wilke. Sergeant Kinyon also noticed a strong alcoholic odor when speaking with Wilke. After Wilke was cleared by the medical personnel, Sergeant Kinyon and Trooper Villa again spoke with Wilke. Wilke claimed he was not driving, did not know how the vehicle ended up in the ditch, stated he was the only person in the vehicle, and he did not know who was driving the vehicle. Due to the weather, Sergeant Kinyon transported Wilke to Birdseye Canyon Creek Fire Hall for field sobriety tests. At the fire hall, LCSO Deputy James Coppola arrived to conduct the tests. Wilke refused to perform field sobriety tests and refused to submit to a breath test. After Deputy Coppola read the informed consent advisory, Wilke refused to submit to a blood test. Deputy Coppola transported Wilke to the detention center and then applied for a search warrant to obtain a blood sample. After the search warrant was granted, Wilke's blood was drawn by medical personnel at approximately 6:30 p.m. Wilke's blood sample was sent to the Montana State Crime Lab, which determined Wilke's blood alcohol content was .304.

¶6 On February 25, 2019, Wilke was charged by Information with felony DUI (fourth offense) in the District Court. The matter went to trial on September 9 and 10, 2019. As relevant to this appeal, the District Court, without objection from Wilke, gave the State's proposed circumstantial evidence instruction at trial. This instruction was identical to a pattern instruction, Model Criminal Jury Instruction 1-117(a), and stated:

When circumstantial evidence is susceptible to two interpretations, one that supports guilt and the other that supports innocence, the jury determines which is most reasonable.

Wilke proposed an additional special instruction regarding circumstantial evidence, proposed instruction no. 17, which stated:

In the event that two reasonable interpretations of the circumstantial evidence exist, one that supports guilt and one that supports innocence, you must enter a not guilty verdict. This is so even if one interpretation is more reasonable than the other, and stems from the principle that a defendant is presumed innocent unless and until the State proves guilt beyond a reasonable doubt.

The State objected to this instruction, and the District Court, finding it was "not an accurate reflection of either the statute or the law in Montana," refused to give it at trial. The jury convicted Wilke of DUI.

¶7 After being convicted at trial, Wilke filed a Motion to Preclude Use of Prior Convictions to Enhance Sentence and Brief in Support on October 1, 2019. Wilke asserted his first DUI conviction out of Butte-Silver Bow County in 2004 was constitutionally infirm "because he was not advised of his right to assistance of counsel and was unrepresented" and therefore this case should be sentenced as a third-offense misdemeanor DUI, rather than as a fourth-offense felony DUI. Wilke asserted he was simply told by the Butte-Silver Bow court to "pay the fine and have a nice day." The State responded in opposition and notified the District Court it intended to call retired Butte-Silver Bow County Justice of the Peace Debra Williams (Judge Williams) to testify at sentencing.

¶8 At sentencing, Judge Williams testified she did not have a specific memory of handling Wilke's 2004 DUI. Judge Williams testified her procedure when a defendant would appear on a citation was to swear the defendant in and advise the defendant of his/her rights, including the right to an attorney and the right to contest the charge and go to trial, before allowing a defendant to say anything. Judge Williams testified if a defendant wished to enter a plea, she would explain the penalties and ask if the plea was being voluntarily made. Judge Williams testified she followed these procedures in every case. Judge Williams further testified she would never tell a defendant, without advising the defendant of his/her rights, to pay the fine and go home and have a nice day. On cross-examination, Judge Williams testified that, while it was her practice to have a defendant sign a written waiver of rights when pleading guilty in every case, on a rare occasion the written waiver may have been overlooked. The District Court found, based on Judge Williams's testimony, that Wilke's 2004 DUI conviction was a valid conviction. The court sentenced Wilke for a felony DUI to the Montana Department of Corrections (DOC) for 13 months, with a recommendation he be placed at the WATCh program, followed by a five-year suspended DOC sentence.

¶9 Wilke appeals, asserting the District Court abused its discretion by not giving his proposed jury instruction no. 17 and that the District Court erred by allowing his 2004 misdemeanor DUI conviction to be used for sentence enhancement.

¶10 A district court has broad discretion when instructing a jury, which we review for abuse of discretion. State v. Sanchez , 2017 MT 192, ¶ 7, 388 Mont. 262, 399 P.3d 886 (citing State v. Zlahn , 2014 MT 224, ¶ 14, 376 Mont. 245, 332 P.3d 247 ). We review jury instructions as a whole to determine whether they fully and fairly instruct the jury on the applicable law. Sanchez , ¶ 7 (citing State v. Kaarma , 2017 MT 24, ¶ 7, 386 Mont. 243, 390 P.3d 609 ). Reversible error occurs only when the jury instructions prejudice the defendant's substantial rights. Kaarma , ¶ 7.

¶11 We begin with Wilke's claim the District Court abused its discretion by declining to give his proposed special jury instruction no. 17 regarding circumstantial evidence. Wilke argues the District Court's failure to give this instruction impermissibly lowered the State's burden of proof to prove all elements of the crime. The State asserts the jury instructions fully and fairly instructed the jury that the State must prove its case beyond a reasonable doubt and that Wilke must be presumed innocent until proven guilty. We agree with the State.

¶12 We have reviewed the jury instructions given by the District Court in this case. In addition to the pattern instruction regarding circumstantial evidence noted above, the District Court instructed the...