State v. D. Boucher

2025 MT 14N, 562 P.3d 1065

• Court: Montana Supreme Court
• Decided: January 22, 2025
• Docket: DA 23-0332
• Status: Unpublished

Opinion

01/22/2025

DA 23-0332 Case Number: DA 23-0332

IN THE SUPREME COURT OF THE STATE OF MONTANA

2025 MT 14N

STATE OF MONTANA,

Plaintiff and Appellee,

v.

DAVID A. BOUCHER,

Defendant and Appellant.

APPEAL FROM: District Court of the Fifth Judicial District, In and For the County of Jefferson, Cause No. DC-2022-30 Honorable Luke Berger, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

James M. Siegman, Attorney at Law, Jackson, Mississippi

For Appellee:

Austin Knudsen, Montana Attorney General, Thad Tudor, Assistant Attorney General, Helena, Montana

Steve Haddon, Jefferson County Attorney, Andrew W. Paul, Chief Deputy County Attorney, Boulder, Montana

Submitted on Briefs: December 18, 2024

Decided: January 22, 2025

Filed:

ir,-6m---if __________________________________________ Clerk 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 David Allen Boucher Jr. (Boucher) appeals his conviction in Montana’s Fifth

Judicial District Court, Jefferson County, for felony DUI. We affirm.

¶3 On August 19, 2022, Boucher was charged with driving or being in actual physical

control of a motor vehicle while under the influence of alcohol, fourth or subsequent

offense, in violation of § 61-8-1002(1)(a), MCA. In its supporting affidavit, the State

asserted that upon a call from a motorist stranded in his 1970s orange and brown striped

motor home on Homestake Pass, Jefferson County Sheriff’s Office Deputy Wilhelm

located the motorist. Deputy Wilhelm could smell the odor of gasoline and engine oil and

could feel the heat radiating from the engine bay indicating the motor home was recently

running/driven. The rear tire of the motor home was in a large ditch and unable to get out.

Boucher stumbled out of the motor home. Upon being asked if he had anything to drink,

Boucher admitted he had a few drinks a few hours before. Boucher reportedly had

difficulty maintaining his balance, performed poorly on field sobriety tests, and blew a .171

on the personal breath test. He was transported to the detention center where he consented

to Intoxilyzer testing, blowing a .124.

2 ¶4 On September 22, 2022, the State filed a notice indicating its intent to rely on

Montana Crime Lab reports. Five certification forms from the Department of Justice

Forensic Science Division were attached to this notice—two field certification report forms

for an Intoxilyzer 9000, serial number 3154, from August 1, 2022 and August 30, 2022; a

laboratory certification for the Intoxilyzer 9000, serial number 3154, dated September 30,

2021, pursuant to Admin. R. M. 23.4.214 (2012); a notice that the calibration sample of

.08 percent had been field certified under Admin. R. M. 23.4.213 (2012); and a certification

that Deputy Wilhelm had been trained and certified as a breath test specialist pursuant to

Admin. R. M. 23.4.216–218 (2012).

¶5 At trial, the State presented testimony from Deputies Wilhelm and Zufelt, who had

encountered and arrested Boucher on August 13, 2022. Each testified to their observations

of Boucher and his arrest. Deputy Wilhelm’s body camera recording was admitted and

shown to the jury. Without objection, the State entered the Intoxilyzer report indicating

the results of Boucher’s testing at the detention facility and Deputy Wilhelm likewise

testified the Intoxilyzer 9000 result showed Boucher’s BAC to be .124. During cross-

examination of Deputy Wilhelm, Boucher’s counsel asked about horizontal gaze

nystagmus (HGN) testing.1 Prior to the State’s re-direct examination, the parties agreed

1 Boucher had, prior to trial, filed a motion in limine to preclude reference to or evidence of horizontal or vertical gaze nystagmus testing without a foundational showing as to the reliability of such testing. The State evidently agreed it would not present evidence as to HGN testing as it did not have an expert to testify as to the science supporting the test. Upon its direct examination, the State did not elicit evidence from Deputy Wilhelm about his conducting of HGN testing on Boucher. As Boucher’s counsel raised the issue of HGN testing on cross-examination, Boucher opened the door for the State to re-direct on the HGN testing. 3 the State could redirect regarding this test and why the State had not presented evidence

about it on its direct examination of Deputy Wilhelm. Throughout trial, Boucher’s defense

focused on persuading the jury that because the vehicle was stuck and the engine not

running when law enforcement encountered Boucher, he was not in actual physical control

of the vehicle. After approximately 20 minutes of deliberation, the jury returned a

unanimous guilty verdict.

¶6 On appeal, Boucher asserts the District Court committed reversible error by

permitting introduction of Boucher’s BAC results without sufficient foundation, by failing

to admonish the jury to ignore the results of the HGN test for insufficient foundation, by

denying Boucher’s motion to dismiss as the State introduced inadmissible evidence in

support of its case, and by failing to use Boucher’s proposed jury instructions regarding

actual physical control of a motor vehicle.

¶7 We review evidentiary rulings in a criminal case for an abuse of discretion. State v.

Bomar, 2008 MT 91, ¶ 14, 342 Mont. 281, 182 P.3d 47. We review de novo a district

court’s denial of a motion for directed verdict. State v. Swann, 2007 MT 126, ¶ 17,

337 Mont. 326, 160 P.3d 511. We review jury instructions in a criminal case to determine

whether they fully and fairly instruct the jury on the law applicable to the case. Swann,

¶ 32. “Further, we recognize that a district court has broad discretion when it instructs a

jury, and we therefore review a district court’s decision regarding jury instructions to

determine whether the court abused that discretion.” Swann, ¶ 32.

¶8 Upon our review of the record, we find no merit in any of Boucher’s appealed issues.

After receiving the State’s notice indicating its intent to rely on Montana Crime Lab reports

4 along with the five certification forms from the Department of Justice Forensic Science

Division, Boucher filed a pretrial motion in limine to preclude admission of breath testing

results without a proper foundational showing. This motion did not indicate how the

previously-provided certification forms were foundationally inappropriate or raise any

specific foundational deficits. From the motion itself it is apparent that if, at trial, Boucher

believed the State failed to lay the proper foundation for Boucher’s Intoxilyzer results, he

would be required to object. At trial, when the State formally moved for admission of the

Intoxilyzer results, Boucher’s counsel did not contest the foundation for such evidence but

instead affirmatively advised the court, “[n]o objection, Your Honor.” Thus, Boucher did

not preserve this issue for appeal.

¶9 Generally, this Court does not address issues not preserved for appeal. Plain error

review is an exception to this general rule. The purpose of plain error review is to correct

error not objected to at trial but that affects the fairness and integrity of the proceedings.

State v. Akers, 2017 MT 311, ¶ 10, 389 Mont. 531, 408 P.3d 142. To reverse a decision

for plain error, a defendant must: (1) demonstrate the error implicated a fundamental right,

and (2) firmly establish that a failure to review the error would result in a manifest

miscarriage of justice, leave unsettled the question of the fundamental fairness of a trial or

proceedings, or compromise the integrity of the judicial process. Akers, ¶ 10.

¶10 Here, we agree with the State that, other than asserting plain error review to be

warranted, Boucher offers no analysis as to why. His counsel clearly understood a

foundational challenge could be made to the Intoxilyzer evidence and affirmatively chose

not only to not object but to affirmatively agree to its admission. From review of the record,

5 it is apparent that defense counsel’s tactics through the course of the litigation changed.

While at the outset counsel was focusing on preclusion of the Intoxilyzer results and HGN

testing, at trial the defense no longer sought to preclude admission of these but rather

attempted to make them irrelevant. If the defense could persuade the jury that Boucher

was not in actual physical control of the vehicle as it was stuck and the engine was not

running when officers arrived, it was irrelevant whether or not he was under the influence

of alcohol. Given the Intoxilyzer certification forms, Deputy Wilhelm’s training and

certification as a breath test specialist, and the body camera recording which permitted the

jury to view Boucher and the behaviors he exhibited evidencing his intoxication, counsel’s

changed trial tactics were understandable, but they do not support plain error review.

Boucher does not seriously question the reliability of the Intoxilyzer testing, Deputy

Wilhelm’s competence as a breath test specialist, nor his apparent impairment resulting

from alcohol consumption. Boucher has failed to demonstrate the criteria necessary for

plain error review.

¶11 Next, Boucher asserts the District Court erred by failing to admonish the jury to

ignore the results of the HGN test for insufficient foundation. Consistent with its pretrial

agreement, the State did not elicit testimony from Deputy Wilhelm about Boucher’s

performance on HGN testing. During cross-examination, however, Boucher’s counsel

elicited evidence from Deputy Wilhelm as to Boucher’s performance on the HGN test—

which was somewhat helpful to Boucher as Deputy Wilhelm testified Boucher had

exhibited only two out of six clues of impairment on the test indicating he did not have a

high dose of alcohol. Boucher then agreed based on his cross-examination that the State

6 appropriately re-directed to explain it had not asked about HGN testing on direct as the

State did not have an expert available to testify as to the science behind the HGN test. At

no time did Boucher ask the District Court to admonish or instruct the jury to ignore the

results of the HGN test for insufficient foundation. We will not permit Boucher to first

manufacture the issue on cross-examination and then raise it for the first time on appeal.

It is fundamentally unfair to fault a district court for failing to rule on an issue it never had

the opportunity to consider. State v. Ramsey, 2007 MT 31, ¶ 16, 336 Mont. 44, 152 P.3d

710.

¶12 After the State rested its case-in-chief, Boucher made a motion for a directed verdict

asserting the State failed to present sufficient evidence as to the element of actual physical

control. The District Court denied the motion. Boucher argues the State claimed he had

actual physical control of his vehicle because he could have had a friend come assist him

in getting the vehicle unstuck. He asserts that the State failed to enter any evidence of any

such friend with the time, means, and motivation to assist Boucher and to the extent the

District Court relied on this evidence in denying the motion for directed verdict, it erred.

In a criminal case, a motion for dismissal for insufficiency of the evidence under

§ 46-16-403, MCA, is only appropriate if, viewing the evidence in a light most favorable

to the prosecution, no evidence exists upon which a rational trier of fact could find the

essential elements of the crime beyond a reasonable doubt. Bomar, ¶ 13; see also Swann,

¶ 16. From our review of the record, when viewed in a light most favorable to the

prosecution, it is clear the State presented sufficient evidence from which a jury could

conclude Boucher was in actual physical control of the vehicle—Boucher exited the

7 vehicle from the driver’s seat when officers arrived, the vehicle engine was warm and

officers smelled gas from the engine and burnt rubber from the spinning of the vehicle’s

tires, no one else was present to have driven the vehicle, and when Boucher called law

enforcement to report he needed assistance he asked Deputy Wilhelm if he should attempt

to back the vehicle up. Further, both Deputy Wilhelm and Deputy Zufelt testified to their

belief that the vehicle was moveable with a little effort in getting it unstuck. As such, the

District Court did not err in denying Boucher’s motion for directed verdict based on

insufficient evidence of actual physical control. On appeal, Boucher now also attempts to

morph his motion for directed verdict to include a motion for directed verdict based on the

District Court’s consideration of “inadmissible evidence.” Boucher now asserts that to the

extent the District Court denied his motion for directed verdict based on the Intoxilyzer test

results, it was error as he now asserts the Intoxilyzer results were “inadmissible evidence.”

The problem for Boucher, of course, is that is not the motion for directed verdict he made

at trial. As stated above, we will not consider issues raised for the first time on appeal as

it is fundamentally unfair to fault a district court for failing to rule on an issue it never had

the opportunity to consider. Ramsey, ¶ 16.

¶13 Finally, Boucher asserts the District Court abused its discretion when it failed to use

his proposed jury instruction regarding actual physical control of a motor vehicle. Boucher

proposed an instruction defining actual physical control and another instruction setting

forth a non-comprehensive list of factors the jury should consider to determine if Boucher

was in actual physical control of the vehicle—including but not limited to where the vehicle

was located, the location of the ignition key (in the ignition or elsewhere), whether the

8 engine was running, where the vehicle was parked and how it got there, whether the vehicle

was disabled, and how easily the vehicle’s disability could be cured. The State proposed

the pattern instruction of actual physical control be given. The District Court rejected

Boucher’s proposed instructions and gave the State’s instruction. The District Court

reasoned that the situation at hand did not involve the vehicle always being disabled such

that the State’s proposed instruction was more suited to the evidence presented.

¶14 Boucher asserts the State’s instruction regarding actual physical control was

inappropriate as it in part provided, “[a] motorist does not relinquish control over a vehicle

simply because it is incapable of starting or moving.” Boucher asserts this language was

precluded by State v. Sommers, 2014 MT 315, 377 Mont. 203, 339 P.3d 65. The State

contrarily asserts the District Court correctly determined this case to be distinguishable

from Sommers. In Sommers, an officer came upon Sommers passed out over his steering

wheel in the parking lot of a Town Pump. Sommers asserted he coasted into the lot after

experiencing some type of mechanical failure and then proceeded to get intoxicated at a

nearby bar while waiting for his ride to come pick him up. When the bar closed, Sommers

elected to wait in his car and fell asleep. Sommers presented his vehicle could not move

because of the mechanical problem. Sommers, ¶¶ 4-10. We determined the specific

language, “[i]t does not matter that the vehicle is incapable of movement,” prejudiced

Sommers’ substantial rights by preventing the jury from considering a valid defense.

Sommers, ¶ 29.

¶15 We agree with the State that the instruction given here did not prevent the jury from

considering Boucher’s defense that he did not have actual physical control over the vehicle

9 because it was stuck. Boucher advanced this defense at trial. Unlike in Sommers though,

there was no dispute Boucher was operating the vehicle when it became stuck and he made

no claim of post-driving alcohol consumption. Under the evidence presented at trial, the

jury instruction given by the District Court regarding actual physical control of the vehicle

fully and fairly instructed the jury on the law applicable to the case. We find no abuse of

discretion by the District Court.

¶16 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the

Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶17 Affirmed.

/S/ INGRID GUSTAFSON

We Concur:

/S/ JAMES JEREMIAH SHEA /S/ LAURIE McKINNON /S/ BETH BAKER /S/ JIM RICE