text:
    Kyra KING, Plaintiff and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee.
    DA 18-0503
    Supreme Court of Montana.
    Submitted on Briefs: July 24, 2019 Decided: September 3, 2019
    For Appellant: Terryl T. Matt, Matt Law Office, PLLC, Cut Bank, Montana
    For Appellee: Paul R. Haffeman, Stephanie A. Hollar, Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Kyra King appeals the Order on Attorney Fees and Litigation Expenses issued by the Seventeenth Judicial District Court, Phillips County, on July 27, 2018. We affirm in part, reverse in part, and remand for further proceedings.

¶2 We restate the issue on appeal as follows:

Whether the insurance exception to the American Rule allows the insured to recover otherwise nontaxable costs she would not have incurred but for the insurer's behavior.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On December 27, 2014, Carla King (Carla) was driving a vehicle which was hit by a drunk driver on U.S. Highway 2, near Malta. In the vehicle with Carla were Karen Yazzie, Kyra King (King), and Kyrsten Henry. Carla, Karen Yazzie, and King were all injured in the accident.

The three filed a lawsuit against both the driver of the other vehicle, Eric Keltesch (Keltesch), and State Farm Mutual Automobile Insurance Company (State Farm) on June 22, 2016. State Farm insured the vehicle that was being driven by Carla at the time of the 2014 accident, and the relevant policy included underinsured motorist (UIM) coverage with a policy limit of $50,000. Keltesch was underinsured for the damages and injuries which resulted from the accident. Karen Yazzie's UIM claim was ultimately dismissed because she was not covered by the policy and Carla's UIM claim was settled before trial.

¶4 King and State Farm did not agree on the value of her claim and so it proceeded to trial in April 2018. State Farm had offered to settle King's claim for $20,000. The jury returned its verdict on April 18, 2018, which found that King had suffered damages in the amount of $410,000. On May 7, 2018, King filed a Motion for Attorney Fees and Litigation Expenses, seeking both attorney fees and a total of $12,767.33 in litigation expenses and costs. On May 11, 2018, King filed an Affidavit for Attorney Fees and Litigation Expenses in Support of Motion, which revised her request for litigation expenses and costs to $12,758.35. State Farm filed its response brief on May 21, 2018, agreeing that King was entitled to her attorney fees, but arguing that King was not entitled to claim her costs because they were not timely filed and exceeded those allowable by statute. On May 22, 2018, the District Court entered its Judgment against State Farm in the amount of $50,000-the policy limit-along with "interest and taxable costs." The District Court's Judgment further stated that the "issue of Plaintiff's attorneys' fees and non-taxable costs shall be determined later." On June 4, 2018, King filed both a Renewed Motion for Attorney Fees and Litigation Expenses and a Reply Brief in Support of Litigation Expenses.

¶5 The District Court held a hearing on King's Motion for Attorney Fees and Litigation Expenses on July 24, 2018. At the hearing, counsel for King again revised her requested litigation expenses and costs-this time seeking a total of $11,800.08. On July 27, 2018, the District Court issued its Order on Attorney Fees and Litigation Expenses. The District Court awarded King $20,000 in attorney fees, pursuant to King's 40% contingency fee arrangement with her attorney, and denied all of King's claimed litigation expenses and costs because they were not filed within five days of the jury's verdict as required by § 25-10-501, MCA. King appeals, arguing that the timing requirement of § 25-10-501, MCA, only applies to those taxable costs found in § 25-10-201, MCA, and she should have been granted her request for nontaxable costs in the form of litigation expenses not covered by the statute.

STANDARD OF REVIEW

¶6 We review a district court's order concerning costs for an abuse of discretion. Total Indus. Plant Servs. v. Turner Indus. Group, LLC , 2013 MT 5, ¶ 61, 368 Mont. 189, 294 P.3d 363 (citing Hitshew v. Butte/Silver Bow County , 1999 MT 26, ¶ 29, 293 Mont. 212, 974 P.2d 650 ). We review a district court's application of a statute in determining entitlement to costs for correctness. Total Indus. Plant Servs. , ¶ 61 (citing Neal v. State , 2003 MT 53, ¶ 4, 314 Mont. 357, 66 P.3d 280 ).

DISCUSSION

¶7 Whether the insurance exception to the American Rule allows the insured to recover otherwise nontaxable costs she would not have incurred but for the insurer's behavior.

¶8 As a general rule, the award of costs to a prevailing litigant is governed by statute and includes a requirement that the party claiming costs submit a memorandum of costs within five days:

The party in whose favor judgment is rendered and who claims the party's costs shall deliver to the clerk and serve upon the adverse party, within 5 days after the verdict or notice of the decision of the court or referee or, if the entry of the judgment on the verdict or decision is stayed, then before the entry is made, a memorandum of the items of the party's costs and necessary disbursements in the action or proceeding. The memorandum must be verified by the oath of the party, the party's attorney or agent, or the clerk of the party's attorney, stating that to the best of the person's knowledge and belief, the items are correct and that the disbursements have been necessarily incurred in the action or proceeding.

Section 25-10-501, MCA.

¶9 Taxable costs, which are required to be listed in the memorandum of costs, are similarly governed by statute:

A party to whom costs are awarded in an action is entitled to include in the party's bill of costs the party's necessary disbursements, as follows:
(1) the legal fees of witnesses, including mileage, or referees and other officers;
(2) the expenses of taking depositions;
(3) the legal fees for publication when publication is directed;
(4) the legal fees paid for filing and recording papers and certified copies of papers necessarily used in the action or on the trial;
(5) the legal fees paid stenographers for per diem or for copies;
(6) the reasonable expenses of printing papers for a hearing when required by a rule of court;
(7) the reasonable expenses of making transcript for the supreme court;
(8) the reasonable expenses for making a map or maps if required and necessary to be used on trial or hearing; and
(9) other reasonable and necessary expenses that are taxable according to the course and practice of the court or by express provision of law.

Section 25-10-201, MCA.

¶10 In the present case, it is undisputed that King did not file a memorandum of costs within five days of the jury's verdict. To the extent that King's motion for attorney fees and litigation expenses claimed costs listed in § 25-10-201, MCA, the District Court correctly denied King's request for those costs and its decision is affirmed in that respect. See Total Indus. Plant Servs ., ¶¶ 67-69. King's appeal in this case, however, claims that the District Court erred by applying this rigid statutory framework to her request for nontaxable costs. We agree.

¶11 "Montana generally follows the American Rule regarding attorney fees, 'where each party is ordinarily required to bear his or her own expenses absent a contractual or statutory provision to the contrary.' " Mlekush v. Farmers Ins. Exch. , 2015 MT 302, ¶ 10, 381 Mont. 292, 358 P.3d 913 ( Mlekush I ) (quoting Winter v. State Farm Mut. Auto. Ins. Co. , 2014 MT 168, ¶ 31, 375 Mont. 351, 328 P.3d 665 ). We also recognize several narrow exceptions to the American Rule. Mlekush I , ¶ 10 (citing Winter , ¶ 31 ). One such exception to the American Rule we have long recognized, relevant here, is the insurance exception. The insurance exception applies "whenever an insurer forces its insured to assume the burden of litigation to obtain what the insured is entitled to under an insurance contract." Abbey/Land v. Glacier Constr. Partners, LLC , 2019 MT 19, ¶ 64, 394 Mont. 135, 433 P.3d 1230 (citations omitted).

¶12 We have previously held that § 25-10-501, MCA, "addresses memoranda of costs only[.]" In re Estate of Lande , 1999 MT 179, ¶ 12, 295 Mont. 277, 983 P.2d 316. In addition, " Section 25-10-201, MCA, enumerates the types of costs 'generally allowable' in a party's bill of costs, but we have long held that the list of items in that section 'is exclusive except as to cases taken out of its operation by special statute, by stipulation of parties, or by rule of court.' " Total Indus. Plant Servs. , ¶ 64 (quoting Roseneau Foods v. Coleman , 140 Mont. 572, 580, 374 P.2d 87, 91 (1962) (emphasis in original)).

¶13 This case arises out of State Farm's failure to provide UIM benefits to King after an accident. By their very nature, insurance contracts such as King's with State Farm are not bargained on equal footing between the parties, but are contracts of adhesion. See Winter , ¶ 19 (citation omitted). After State Farm offered King only $20,000-well below the policy limit of $50,000-King was forced to take the matter to trial, where a jury determined that she had suffered $410,000 in damages in the accident, to recover the benefits to which she was entitled from the insurance contract with State Farm. It is undisputed that King's case falls under the insurance exception to the American Rule, and all parties agree that she is entitled to her $20,000 award of attorney fees. As previously addressed, it is also undisputed that King did not file a memorandum of costs within five days of the jury's verdict to recover her taxable costs pursuant to §§ 25-10-201 and -501, MCA. Where the parties differ, however, is regarding King's entitlement to her litigation expenses which do not fall under § 25-10-201, MCA, or her "nontaxable costs."

¶14 In Mlekush I , Mlekush was injured in an accident with an underinsured motorist. Mlekush had underinsured motorist coverage with a $200,000 policy limit through Farmers Insurance Exchange (Farmers). After several months of exchanging medical information with and requesting payments from Farmers, Mlekush eventually filed suit in the district court, seeking payment of the sums due to her under her UIM policy with Farmers. A year and a half later, after the parties had exchanged several settlement offers, Mlekush received a jury verdict in the amount of $450,000. The district court entered judgment against Farmers and in favor of Mlekush for the UIM policy limit of $200,000. Five days after the verdict, Mlekush filed a memorandum of costs pursuant to §§ 25-10-201 and -501, MCA. Three weeks after the verdict, Mlekush filed a motion for "attorney fees and nontaxable costs." The district court denied Mlekush's motion for attorney fees and nontaxable costs, finding that Mlekush did not meet the insurance exception. Mlekush I , ¶¶ 3-7. We reversed the district court's denial of Mlekush's motion for attorney fees and nontaxable costs and remanded to the district court to determine whether Farmers' conduct forced Mlekush to initiate legal action to obtain the full benefit of her UIM policy. Mlekush I , ¶ 14.

¶15 Two years after we decided Mlekush I , the matter again came before us in Mlekush v. Farmers Ins. Exch. , 2017 MT 256, 389 Mont. 99, 404 P.3d 704 ( Mlekush II ). After the case was remanded to the district court in Mlekush I , the district court again determined that Mlekush was not entitled to her attorney fees and nontaxable costs pursuant to the insurance exception to the American Rule. Mlekush II , ¶ 12. We again reversed the district court, holding that the insurance exception to the American Rule applies when an "insured is compelled to pursue litigation and a jury returns a verdict in excess of the insurer's last offer to settle an underinsured motorist claim[.]" Mlekush II , ¶ 23. As Mlekush was forced to institute litigation to recover the money to which she was entitled under her insurance contract, Farmers was required to pay Mlekush's fees incurred in pursuing that litigation. Mlekush II , ¶ 24. We ultimately remanded again to the district court with instructions to "consider a reasonable amount of fees, costs , and interest to which Mlekush is entitled." Mlekush II , ¶ 25 (emphasis added).

¶16 In both Mlekush I and Mlekush II , this Court considered the district court's denial of Mlekush's motion for attorney fees and nontaxable costs. Each time, we reversed the district court's denial of that motion. Finally, we remanded to the district court to award Mlekush her attorney fees, costs, and interest under the insurance exception to the American Rule. Mlekush II , ¶ 25. We implicitly extended the insurance exception to the American Rule to allow for the recovery of nontaxable costs in the Mlekush I and Mlekush II decisions. We now extend it explicitly. Restated, we hold that the insurance exception to the American Rule allows for an insured to recover both taxable and nontaxable costs from an insurer when the insured is forced to assume to burden of legal action to obtain the full benefit of his or her policy. The insurance exception is a "rule of court" that removes such cases from the exclusive operation of § 25-10-501, MCA. Total Indus. Plant Servs. , ¶ 64. To recover taxable costs, the insured must submit a memorandum of costs within the time required by § 25-10-501, MCA. To recover nontaxable costs pursuant to the insurance exception, the insured must submit a request for those nontaxable costs contemporaneously with, or before, a request for attorney's fees. We hold that a request for nontaxable costs under the insurance exception to the American Rule must be made by this time to facilitate the "uniform, timely notification of what costs are claimed and enable[ ] the opposing party to enter an objection." Total Indus. Plant Servs. , ¶ 68. ¶17 In the present case, the District Court correctly awarded King her attorney fees pursuant to the insurance exception to the American Rule and correctly denied King's request for taxable costs pursuant to § 25-10-201, MCA, as untimely. Because King should have been allowed to request her nontaxable costs even after filing her motion past the five-day limit imposed by § 25-10-501, MCA, however, the District Court erred when it denied King's request for her nontaxable litigation expenses incurred due to State Farm's behavior. The matter must be remanded to the District Court to determine the amount of nontaxable costs to be awarded to King.

CONCLUSION

¶18 The District Court correctly held that King was not entitled to her taxable costs as provided by § 25-10-201, MCA, because they were not timely filed. The District Court erred when it determined that King was not entitled to her claimed nontaxable costs, because those litigation costs are part of the insurance exception to the American Rule.

¶19 Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

We concur:

MIKE McGRATH, C.J.

JIM RICE, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

      The District Court's Order on Attorney Fees and Litigation Expenses which denied King her taxable costs because they were not timely filed appears to supersede its previously-issued Judgment which granted King her taxable costs.

      The language of the opinion states that we reversed "the District Court's order denying Mlekush's motion for attorney fees and taxable costs." Mlekush I , ¶ 14. The reference to "taxable costs" appears to be a typographical error.


source: Caselaw Access Project

license: Public Domain

text:
    CITY OF BOZEMAN, Plaintiff and Appellee, v. Scott Reegan MCCARTHY, Defendant and Appellant.
    DA 17-0080
    Supreme Court of Montana.
    Submitted on Briefs: April 17, 2019 Decided: September 3, 2019
    For Appellant: William F. Hooks, Law Office of William F. Hooks, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Mardell Ployhar, Assistant Attorney General, Helena, Montana, Bekki McLean, Greg Sullivan, Bozeman City Attorney's Office, Bozeman, Montana
   Justice Dirk M. Sandefur delivered the Opinion of the Court.

¶1 Scott Reegan McCarthy appeals the judgment of the Montana Eighteenth Judicial District Court, Gallatin County, affirming the Bozeman Municipal Court's judgments of conviction on jury trial of misdemeanor Criminal Trespass, Assault (two counts), Resisting Arrest, and Obstructing a Peace Officer. We address the following restated issues on appeal:

1. Whether the Municipal Court erroneously subjected McCarthy's asserted "substantial need" for the arresting officers' personnel files under § 46-15-322(5), MCA, to balancing with their constitutional right to privacy?
2. Whether the Municipal Court erroneously excluded examining physician testimony regarding the nature and extent of injuries sustained by McCarthy incident to arrest?
3. Whether sufficient evidence existed to sustain McCarthy's conviction for obstructing a peace officer as defined by § 45-7-302, MCA ?

¶2 We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 While walking home after midnight on May 25, 2015, Bozeman residents Christopher and Kelsey Cundy observed a man, later identified as McCarthy, inside their pickup where they had left it parked on the street outside their home. As they continued to approach, they saw the man exit the pickup and attempt to get into their nearby parked car. At that point, Kelsey yelled at the man, causing him to run away with Kelsey in pursuit. Before Christopher caught up with them, McCarthy stopped, turned around, and struck Kelsey, scratching her chest with a pen. The man then again ran away with Kelsey in pursuit and Christopher still lagging behind. At some point, McCarthy stopped to confront Kelsey again. This time, however, Christopher had caught up, jumped between them, and briefly grappled with McCarthy before he broke free and ran out of sight. In response to Kelsey's 911 call, Bozeman police officers quickly arrived on scene in numbers and spoke with the couple.

¶4 After stepping away from police to see if anything was missing from their pickup, the couple saw McCarthy reappear, running past them toward the end of the street where it dead-ended at Bozeman Creek. Christopher pursued the man toward the creek while Kelsey alerted the police. As McCarthy went into the creek, Officer Lloyd caught up, drew his sidearm, and ordered McCarthy to stop and raise his hands. When McCarthy was slow to respond, Officer Lloyd threatened to shoot him if he did not comply. McCarthy then complied. After a second officer arrived at the creek and held McCarthy at bay at Taser-point, Lloyd approached and gripped McCarthy by an arm to cuff and arrest him.

¶5 Officer Lloyd testified at trial that McCarthy then tensed up and attempted to pull free. Lloyd testified that, as McCarthy continued to struggle to break free, he punched McCarthy several times in the midsection to terminate his resistance and force him to submit to arrest. Lloyd and McCarthy fell to the ground as the struggle continued, with McCarthy face-down, holding his hands in underneath his body. Lloyd testified that McCarthy continued to defiantly hold his hands in despite repeated commands to show his hands and unsuccessful attempts by Lloyd to physically pull his hands out to subdue and cuff him. Lloyd further testified that during the process, he again repeatedly punched McCarthy in the side in an attempt to force him to submit to arrest. Meanwhile, a third officer (Officer Chaffins) soon joined the fray and also repeatedly punched McCarthy to force him into submission. The officers' body cameras revealed the two officers on the ground struggling with McCarthy, punching and kneeing him, with another standing nearby. The officers eventually subdued and arrested McCarthy and had him transported to the hospital by ambulance for medical care. Officer Lloyd subsequently cited McCarthy into the City of Bozeman Municipal Court on two counts of assault, criminal trespass to a motor vehicle, obstructing a peace officer, and resisting arrest-all misdemeanors in violation of Title 45, MCA.

¶6 In a contentious pretrial discovery process, the State ultimately provided a broad swath of investigative information compiled by the Bozeman Police Department regarding the incident. The State refused, however, to permit discovery of the requested internal police department use-of-force policy, related use-of-force reports and dispositions regarding the McCarthy incident, and the involved officers' pre-incident "personnel records."

¶7 On February 9, 2016, McCarthy filed a motion to compel discovery of the disputed information pursuant to § 46-15-322(1) and (5), MCA. Without further explanation, the motion cursorily asserted that the disputed items of information were relevant to the circumstances of McCarthy's arrest and his contemplated defense that he was physically unable to obstruct and resist his arrest as alleged. In opposition, the State asserted that the disputed items of information were outside the scope of discovery separately required by § 46-15-322(1), MCA (required scope of state disclosure in ordinary course), and the Due Process clause of the Fourteenth Amendment to the United States Constitution (exculpatory information and other constitutionally material information ). Based on the "abundance" of incident-specific discovery already provided under §§ 46-15-322(1), 45-7-301(2), and -302(2), MCA (legality of arrest no defense to obstructing or resisting arrest), and the written representation of the deputy police chief that the disputed information was not Brady / Giglio information, the State asserted that McCarthy further failed to show "substantial need" for the disputed information under § 46-15-322(5), MCA (discovery information not otherwise provided for by § 46-15-322(1) - (2) ). In the contingent event that the court may nonetheless find that McCarthy had shown "substantial need" for the officers' incident-specific use-of-force reports/dispositions or related prior disciplinary histories, the State asserted that an in camera inspection would be necessary to balance McCarthy's asserted need with the officers' rights to individual privacy under Montana Constitution Article II, Section 10. Asserting that a showing of "substantial need" under § 46-15-322(5), MCA, precludes any consideration of the officers' privacy rights, McCarthy opposed the State's request for an in camera inspection. ¶8 Without conducting an in camera inspection, the Municipal Court compelled the State to provide discovery of the police department's use-of-force policy and related incident-specific use-of-force reports and dispositions regarding the officers. The court reasoned that:

all information ... pertaining to [McCarthy's] arrest is entirely within the purview of § 46-15-322(1), MCA, because it may constitute a "statement" by the officers whom the State may rely on at trial ... and most, if not all, of the information could mitigate or negate [his] guilt or may reduce his potential sentence ... because it would provide additional details pertaining to the basis of the criminal charges against [him].

(Emphasis added.) However, without reference to Brady / Giglio standards, the court denied McCarthy's request for discovery of the officers' prior personnel records, concluding that:

employment records are subject to the right to privacy set forth in [ ] Article II, Section 10 of the Montana Constitution ... [and that i]n balancing the Defendant's right to know with [the officers'] right to privacy in their respective personnel records, [the officers'] demand for privacy exceeds the merits of disclosure to the Defendant in this instance. [McCarthy] has not shown substantial need for the personnel records.

(Emphasis added.)

¶9 In a separate pretrial matter, the State filed a motion in limine pursuant to M. R. Evid. 402 - 03 to preclude McCarthy from presenting examining physician testimony regarding the nature and extent of injuries he sustained incident to the arrest (five fractured ribs and a partially collapsed lung). The State conceded that information describing "the sequence of events" regarding McCarthy's "arrest or actions by those involved" was generally "relevant" to the charged offenses but asserted that any "medical information collected thereafter does not have any tendency to make the existence of any fact that is [of] consequence" to the charged offenses "more or less probable...." McCarthy contrarily asserted that the nature and extent of his injuries tended to prove that he was in fact physically unable to resist and obstruct the arrest as alleged. The Municipal Court reserved judgment pending consideration in the context of the actual trial evidence.

¶10 At trial, McCarthy made an offer of proof that the proffered testimony of the physician who examined him the next day was relevant to show the amount of force, i.e., excessive force, used by the arresting officers. The State reasserted its prior objections pursuant to M. R. Evid. 402 - 03. Noting that the physician did not examine McCarthy until the next day and that Officer Lloyd had already testified regarding his injuries, the Municipal Court rejected the offer of proof and excluded the proffered physician testimony. After a two-day trial, the jury found McCarthy guilty on all counts as charged. He appealed to the Montana Eighteenth Judicial District Court. The District Court affirmed. McCarthy timely appeals to this Court.

STANDARD OF REVIEW

¶11 On appeal from municipal courts of record, district courts functions as intermediate courts of appeal with the scope of review limited to "the record and questions of law. ..." Sections 3-6-110(1), 3-5-303, MCA. On appeal of a judgment of an intermediate court of appeal, we review the record independent of the district court as if the matter was originally appealed directly to this Court. Stanley v. Lemire , 2006 MT 304, ¶¶ 25-26, 334 Mont. 489, 148 P.3d 643.

¶12 We review evidentiary rulings and rulings on discovery motions for an abuse of discretion. State v. Spottedbear , 2016 MT 243, ¶ 9, 385 Mont. 68, 380 P.3d 810 ; Billings v. Peterson , 2004 MT 232, ¶ 13, 322 Mont. 444, 97 P.3d 532. A lower court abuses its discretion if it exercises granted discretion based on a mistake of law, erroneous finding of material fact, or otherwise acts arbitrarily, without conscientious judgment or in excess of the bounds of reason, resulting in substantial injustice. State v. Mills , 2018 MT 254, ¶ 12, 393 Mont. 121, 428 P.3d 834. A challenge of the sufficiency of the evidence to sustain a conviction is a question of law reviewed de novo. State v. Colburn , 2016 MT 246, ¶ 7, 385 Mont. 100, 386 P.3d 561. The standard of review for challenges to the sufficiency of the evidence is whether, when viewed in the light most favorable to the prosecution, sufficient record evidence exists upon which the trier of fact could have rationally found all essential elements of the crime proven beyond a reasonable doubt. State v. Booth , 2012 MT 40, ¶ 7, 364 Mont. 190, 272 P.3d 89 ; State v. Roberts , 194 Mont. 189, 195, 633 P.2d 1214, 1218-19 (1981) (citing Jackson v. Virginia , 443 U.S. 307, 319, 99 S. Ct. 2781, 2789, 61 L.Ed.2d 560 (1979) ). We generally will not address issues raised for the first time on appeal. Weaver v. State , 2013 MT 247, ¶ 38, 371 Mont. 476, 310 P.3d 495 (internal citation omitted).

DISCUSSION

¶13 1. Whether the Municipal Court erroneously subjected McCarthy's asserted "substantial need" for the arresting officers' personnel files under § 46-15-322(5), MCA, to balancing with their constitutional right to privacy?

¶14 Upon request, the criminal prosecutor must permit defense discovery of various enumerated classes of "material and information," including, inter alia , all "statements" of potential state witnesses and "all material or information that tends to mitigate or negate the defendant's guilt as to the offense charged or that would tend to reduce the defendant's potential sentence." Section 46-15-322(1) - (2), MCA. Independent of § 46-15-322, MCA, and implied from the fundamental fair trial rights guaranteed to criminal defendants under the Due Process Clause of the Fourteenth Amendment to the United States Constitution, criminal prosecutors have an affirmative duty to disclose all information and materials known to the prosecutor that are favorable to the accused and constitutionally material to the determination of his or her guilt or punishment. Brady , 373 U.S. at 87-88, 83 S. Ct. at 1196-97 ; Giglio , 405 U.S. at 153-55, 92 S. Ct. at 766. However, the Brady / Giglio duty does not create a general constitutional discovery right entitling an accused to unfettered access to sift through all information available to the government that might be helpful at trial or sentencing. See Kyles v. Whitley , 514 U.S. 419, 437, 115 S. Ct. 1555, 1567, 131 L.Ed.2d 490 (1995) ; Pennsylvania v. Ritchie , 480 U.S. 39, 59-60, 107 S. Ct. 989, 1002, 94 L.Ed.2d 40 (1987) ; United States v. Bagley , 473 U.S. 667, 675 n.7, 105 S. Ct. 3375, 3379-80, 87 L.Ed.2d 481 (1985) ; Giglio , 405 U.S. at 154-55, 92 S. Ct. at 766. The scope of required disclosure is limited to exculpatory evidence and any other constitutionally material evidence tending to show that a prosecution witness is unreliable, biased, has an interest or motive to testify falsely, or has a character for untruthfulness. Bagley , 473 U.S. at 676-77, 105 S. Ct. at 3380-81 ; Giglio , 405 U.S. at 154-55, 92 S. Ct. at 766. Non-exculpatory information is constitutionally material only if nondisclosure would be reasonably likely to "undermine confidence" in the fairness of the trial or sentencing determination under the totality of the circumstances. Kyles , 514 U.S. at 434-38, 115 S. Ct. at 1566-68 ; Bagley , 473 U.S. at 678-82, 105 S. Ct. at 3381-83 ; Giglio , 405 U.S. at 154, 92 S. Ct. at 766. Non-exculpatory impeachment evidence is thus constitutionally material only where the subject witness provides the key "evidence linking the defendant(s) to the crime, or where the likely impact on the witness's credibility would ... undermine[ ] a critical element of the prosecution's case." United States v. Payne , 63 F.3d 1200, 1210 (2d Cir. 1995) (internal punctuation and citations omitted). See also Kyles , 514 U.S. at 441-54, 115 S. Ct. at 1569-76 (holding that contemplated impeachment of government eyewitnesses would have undermined their testimony and weakened effect of other untainted evidence essential to proof of guilt); Giglio , 405 U.S. at 154-55, 92 S. Ct. at 766 ; United States v. Dent , 149 F.3d 180, 191 (3rd Cir. 1998) (finding police misconduct in an unrelated drug case constitutionally material impeachment evidence in later drug case but denying discovery upon in camera review). Compare Payne , 63 F.3d at 1210 (otherwise admissible impeachment evidence not constitutionally material where other testimony or evidence corroborates the subject testimony or where the impeachment evidence "merely furnishes an additional basis on which to impeach a witness whose credibility has already been shown to be questionable"). In camera review is the necessary and proper means to balance an accused's due process rights with other compelling government interests including, e.g., privacy rights of government agents and third parties. See , e.g. , United States v. Jumah , 599 F.3d 799, 807-11 (7th Cir. 2010) (noting accused's burden "to establish" Brady / Giglio violation, insufficiency of unsupported speculative assertions, and failure to request in camera inspection). Accord Ritchie , 480 U.S. at 59-60, 107 S. Ct. at 1002-03 ; Dent , 149 F.3d at 191 ; United States v. Cadet , 727 F.2d 1453, 1467-69 (9th Cir. 1984) ; United States v. Jones , 612 F.2d 453, 456 (9th Cir. 1979). ¶15 As a statutory matter independent of a prosecutor's Brady / Giglio duty, a defendant may, upon motion and in the discretion of the court, obtain extraordinary discovery, i.e., discovery of "additional material or information not otherwise provided for" by § 46-15-322(1) - (2), upon a showing that he or she (1) "has substantial need" for the requested information "in the preparation of the case," and (2) is "unable, without undue hardship, to obtain the substantial equivalent by other means...." Section 46-15-322(5), MCA. Here, the parties' briefing and resulting lower court rulings are replete with intermixed references to Brady / Giglio standards and information separately available under § 46-15-322(1) and (5), MCA. However, except for passing cursory reference to Brady / Giglio standards and § 46-15-322(1)(e), MCA ("material or information ... tend[ing] to mitigate or negate the defendant's guilt ... [or] reduce the ... potential sentence"), McCarthy provided no particularized explanation in the Municipal Court as to how or on what basis the arresting officers' pre-incident personnel records could conceivably include constitutionally material information or similar material discoverable under § 46-15-322(1)(e), MCA. In that regard, McCarthy further opposed the State's contingent request for an in camera inspection to determine whether and to what extent, if any, the officers' personnel records may have in fact included any information for which he asserted substantial need under § 46-15-322(5), MCA. Rather, based on a naked assertion of "substantial need," he asserted that he was entitled to indiscriminate discovery of the officers' pre-incident personnel files to unilaterally sift through them for any prior history of use of excessive force, without regard for their privacy interests. Under these circumstances, we have no obligation to formulate saving arguments or further develop McCarthy's passing references to potential Brady / Giglio information, or similar information under § 46-15-322(1)(e), MCA, and decline to address those matters further. Peterson , ¶ 48.

¶16 As to his request for the officers' pre-incident personnel records pursuant to § 46-15-322(5), MCA, McCarthy asserts that the Municipal Court erroneously considered the officers' privacy rights with his asserted "substantial need" instead of exclusively assessing or analyzing his asserted need in isolation. McCarthy correctly points out that the Municipal Court did not first assess and determine whether he had "substantial need" for the officers' pre-incident personnel records. However, when a lower court affirmatively grants or denies a motion, the court's failure to explicitly address every argument or assertion in opposition to the ruling is an implicit rejection of those arguments or assertions and is not erroneous per se . See Masters Grp. Int'l, Inc. v. Comerica Bank , 2015 MT 192, ¶¶ 37-40, 380 Mont. 1, 352 P.3d 1101 ; State v. Hope , 2001 MT 207, ¶¶ 9-10, 306 Mont. 334, 33 P.3d 629 (distinguishing State v. Weaver , 276 Mont. 505, 509, 917 P.2d 437, 440 (1996)). See also United States v. Dubrule , 822 F.3d 866, 884-85 (6th Cir. 2016) ; United States v. Claxton , 766 F.3d 280, 290-91 (3rd Cir. 2014) ; United States v. Depew , 210 F.3d 1061, 1065 (9th Cir. 2000). Accordingly, in explicitly denying McCarthy's motion with reference to the officers' rights to privacy, the Municipal Court implicitly rejected or subordinated his predicate assertion of "substantial need" under § 46-15-322(5), MCA. Though his asserted purpose was to discover any prior history of the arresting officers' use of excessive force, McCarthy has yet to particularly articulate or show what legitimate "substantial need" he had for that information in the defense of this case as required by § 46-15-322(5), MCA. He has thus failed to meet his burden on appeal of demonstrating that the Municipal Court abused its discretion in implicitly rejecting his assertion of "substantial need" for the requested extraordinary discovery under § 46-15-322(5), MCA.

¶17 As to the central issue of whether an asserted "substantial need" under § 46-15-322(5), MCA, is even subject to balancing with implicated privacy rights as a threshold matter, all individuals, including police officers, have a fundamental Montana constitutional right to privacy. Mont. Const. art. II, § 10 ; State ex rel. Zander v. Fourth Judicial Dist. Ct. , 180 Mont. 548, 555-56, 591 P.2d 656, 660 (1979). While the existence and extent of the right necessarily depends in each case on whether the subject has an expectation of privacy that is both subjectively and objectively reasonable under the totality of the circumstances, State v. Goetz , 2008 MT 296, ¶¶ 25-31, 345 Mont. 421, 191 P.3d 489 ; Great Falls Tribune v. Cascade Cty. Sheriff , 238 Mont. 103, 105-07, 775 P.2d 1267, 1268-70 (1989), we have often recognized that private and public employees have a right to privacy in non-disclosure of employment personnel records regarding performance assessments, internal disciplinary matters, and other personally sensitive information. See Missoula Cty. Pub. Schs. v. Bitterroot Star , 2015 MT 95, ¶¶ 11-13, 378 Mont. 451, 345 P.3d 1035 ; Billings Gazette v. Billings , 2013 MT 334, ¶¶ 41-53, 372 Mont. 409, 313 P.3d 129 ( Gazette 2013 ); State v. Burns , 253 Mont. 37, 40-42, 830 P.2d 1318, 1320-22 (1992) ; Flesh v. Bd. of Trs. , 241 Mont. 158, 165-66, 786 P.2d 4, 9 (1990) ; Missoulian v. Bd. of Regents , 207 Mont. 513, 522-28, 675 P.2d 962, 967-70 (1984) ; Mont. Human Rights Div. v. Billings , 199 Mont. 434, 440-43, 649 P.2d 1283, 1287-88 (1982). See also Citizens to Recall Mayor Whitlock v. Whitlock , 255 Mont. 517, 523, 844 P.2d 74, 78 (1992) (noting elected official's conceivable reasonable expectation of privacy regarding "information related to private sexual activity, general performance evaluations, or proceedings" discussing official's "character, integrity, honesty, or personality"). However, due to the circumstantial nature of the right, we have also recognized that public employees, such as police officers, who hold "positions of great public trust" in the performance of their official duties generally have a reduced expectation of privacy regarding misconduct in violation of that trust or otherwise affecting their ability to perform their duties. Billings Gazette v. Billings , 2011 MT 293, ¶¶ 20, 22-29, 362 Mont. 522, 267 P.3d 11 ( Gazette 2011 ); Bozeman Daily Chronicle v. Bozeman Police Dep't , 260 Mont. 218, 225-27, 859 P.2d 435, 439-41 (1993) ; Whitlock , 255 Mont. at 522-23, 844 P.2d at 77-78 ; Cascade Cty. Sheriff , 238 Mont. at 105-07, 775 P.2d at 1268-70. As expressly provided by our state Constitution, an individual's right to privacy is not absolute and may be "infringed" upon "the showing of a compelling state interest." Mont. Const. art. II, Section 10. Depending upon the circumstances, such a "compelling state interest" may be the recognition or furtherance of a competing state or federal constitutional right, a statutory right or duty, or another government interest. See Missoula Cty. Pub. Schs. , ¶ 11 (balancing right to privacy with public right to know); Burns , 253 Mont. at 40-41, 830 P.2d at 1320-21 (balancing right to privacy with state interest in enforcement of criminal law); Mont. Human Rights Div. , 199 Mont. at 444, 649 P.2d at 1288 (balancing right to privacy with state constitutional right to equal protection and related state interest in enforcing Montana Human Rights Act). See also Great Falls Tribune v. Eighth Judicial Dist. Ct. , 186 Mont. 433, 437-39, 608 P.2d 116, 119 (1980) (balancing public right to know with federal and state constitutional rights of criminal defendants to speedy, fair, and impartial trials).

¶18 Section 46-15-322(5), MCA, is a provision of criminal procedure enacted by the Legislature in furtherance of Montana's compelling interest in providing fair trials in accordance with Title 46, MCA, and over-arching federal and state constitutional fair trial rights. In contrast, the right to individual privacy is an often-competing Montana constitutional right. Neither necessarily trumps the other in every circumstance. When an asserted or implicated right to individual privacy conflicts with enforcement or furtherance of a competing federal or state constitutional right or other compelling state interest furthered by law, courts must first assess the nature and extent of the asserted privacy interest (i.e., whether subjectively and objectively reasonable) under the totality of the circumstances at issue and then balance it with the competing constitutional right or other compelling state interest. See Missoula Cty. Pub. Schs. , ¶¶ 11-13 ; Gazette 2013 , ¶¶ 18-59 ; Gazette 2011 , ¶¶ 16-29 ; Bozeman Daily Chronicle , 260 Mont. at 225-28, 859 P.2d at 439-41 ; Whitlock , 255 Mont. at 522-24, 844 P.2d at 77-78 ; Burns , 253 Mont. at 40-43, 830 P.2d at 1320-22 ; Flesh , 241 Mont. at 165-66, 786 P.2d at 8-10 ; Cascade Cty. Sheriff , 238 Mont. at 105-07, 775 P.2d at 1268-70 ; Missoulian , 207 Mont. at 522-29, 675 P.2d at 967-71 ; Mont. Human Rights Div. , 199 Mont. at 440-46, 649 P.2d at 1287-90. Thus, when a criminal defendant's asserted "substantial need" for extraordinary discovery under § 46-15-322(5), MCA, conflicts with the right to privacy of an involved government agent or third party, courts must assess the nature and extent of the asserted right to privacy under the totality of the circumstances and then carefully balance it with the defendant's asserted need in furtherance of the fair trial rights afforded by Title 46, MCA, and the United States and Montana Constitutions.

¶19 McCarthy nonetheless asserts that our holdings in Peterson and State v. Romero , 279 Mont. 58, 74, 926 P.2d 717, 727 (1996), preclude consideration of implicated privacy rights once a defendant shows the requisite "substantial need" for extraordinary discovery under § 46-15-322(5), MCA. In Peterson , a criminal defendant who challenged whether the arresting officer had sufficient particularized suspicion to justify the investigative stop that led to his arrest asserted that the court erroneously determined that he failed to show "substantial need" for discovery of the arresting officer's personnel file under § 46-15-322(5), MCA. Peterson , ¶¶ 9, 42-44. After briefly discussing Brady / Giglio standards and noting that the defendant did not allege a Brady violation, we affirmed based on his failure to show a sufficient case-related need for the officer's personnel file. Peterson , ¶¶ 42-53. We referenced the officer's right to privacy only in noting that the defendant did not address a related State contention and in rejecting the defendant's new assertion, raised for the first time on appeal, that he was entitled to the personnel file based on the public's right to know under Article II, Section 9 of the Montana Constitution (public's right to know) and as applied in Cascade Cty. Sheriff , 238 Mont. at 105-07, 775 P.2d at 1268-70 (balancing officers' reduced expectation of privacy in re misconduct with public's right to know). Peterson , ¶ 51.

¶20 In Romero , as pertinent, a defendant convicted of various hunting violations asserted that the district court erroneously denied a defense motion in limine to preclude the investigating undercover state officer from testifying at trial in light of the State's refusal to permit discovery of the officer's personnel file. Romero , 279 Mont. at 73-74, 926 P.2d at 726-27. Noting that § 46-15-322(5), MCA, is the proper procedural vehicle for seeking discovery of an investigating officer's personnel file and that the defendant failed to file a § 46-15-322(5) motion to compel as advised by the district court, we affirmed. Romero , 279 Mont. at 73-74, 926 P.2d at 726-27. Without reference to the officer's right to privacy, we merely noted that, by failing to file a motion to compel, the defendant prevented the district court from assessing whether he in fact had a "substantial need" for such extraordinary discovery as required by § 46-15-322(5), MCA. Romero , 279 Mont. at 74, 926 P.2d at 727. Neither Peterson nor Romero considered whether balancing of competing privacy interests is necessary or proper once a defendant shows "substantial need" for extraordinary discovery under § 46-15-322(5), MCA. Peterson and Romero are thus of no consequence here.

¶21 McCarthy did not sufficiently challenge the actual balance of his asserted need for the arresting officers' personnel records and their implicated privacy interests in the Municipal Court. As in Peterson , he did not sufficiently raise a Brady / Giglio issue in the Municipal Court and has not sufficiently shown one on the record on appeal. More fundamentally, based on mere cursory assertion of a "substantial need" for the officers' pre-incident personnel records, McCarthy sufficiently challenged only the threshold question of whether an asserted "substantial need" for extraordinary discovery under § 46-15-322(5), MCA, is subject to assessment and balancing with implicated privacy interests. Under these circumstances, we hold that the Municipal Court correctly denied McCarthy's request for discovery of the arresting officers' pre-incident personnel records.

¶22 2. Whether the Municipal Court erroneously excluded examining physician testimony regarding the nature and extent of injuries sustained by McCarthy incident to arrest?

¶23 In response to the State's trial and pretrial objections pursuant to M. R. Evid. 402 - 03, the Municipal Court excluded defense-proffered physician testimony regarding the nature and extent of the injuries sustained by McCarthy incident to his arrest. The court reasoned that the testimony was only marginally relevant, if at all, given the elements of the offenses of obstructing and resisting a peace officer, the fact that Officer Lloyd had already testified regarding McCarthy's injuries incident to arrest, and that the physician did not examine him until the next day. The court thus essentially concluded that the danger of unfair prejudice substantially outweighed any probative value of the proffered testimony. McCarthy asserts that the court erroneously applied M. R. Evid. 403 because the nature and extent of his injuries were highly relevant to whether he "was physically incapable of resisting or obstructing, and [that] his conduct was consistent with [merely] defending himself against the punches and kicks" rather than knowingly obstructing and resisting the officers' attempt to arrest him as alleged. He asserts that Officer Lloyd's "non-medical, brief and general narrative" account of his injuries was insufficient to adequately support his asserted defense theory.

¶24 All evidence probative of a fact at issue is generally admissible. M. R. Evid. 402. Here, the State tacitly concedes that the proffered physician testimony had at least some marginal relevance in furtherance of McCarthy's asserted defense theory. However, a trial court may nonetheless exclude otherwise relevant evidence if its "probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." M. R. Evid. 403. While all probative evidence is generally prejudicial to the opposing party, evidence is "unfairly prejudicial only if it arouses the jury's hostility or sympathy for one side without regard to its probative value, if it confuses or misleads the trier of fact, or if it unduly distracts from the main issues." State v. Daffin , 2017 MT 76, ¶ 25, 387 Mont. 154, 392 P.3d 150 (quoting State v. Madplume , 2017 MT 40, ¶ 33, 386 Mont. 368, 390 P.3d 142 (internal punctuation omitted with emphasis added)). "[Trial] courts have broad discretion to weigh the relative probative value of evidence against the risk of unfair prejudice." Madplume , ¶ 32.

¶25 As referenced in M. R. Evid. 403, "unfair prejudice" refers "to the capacity of some concededly relevant evidence to lure the factfinder" into determining a disputed issue of fact "on a ground different from proof specific to" an essential element of proof of an asserted legal charge, claim, or defense at issue. Old Chief v. United States , 519 U.S. 172, 180, 117 S. Ct. 644, 650, 136 L.Ed.2d 574 (1997) (citing 1 J. Weinstein, M. Berger, & J. McLaughlin, Weinstein's Evidence ¶ 403[03] (1996)). In other words, "unfair prejudice" refers to evidence that presents an undue risk that the factfinder will decide the disputed issue of fact "on an improper basis, commonly, though not necessarily, an emotional one." Old Chief , 519 U.S. at 180, 117 S. Ct. at 650 (citing Advisory Committee Notes to Fed. R. Evid. 403 ). Accord State v. Belanus , 2010 MT 204, ¶ 14, 357 Mont. 463, 240 P.3d 1021 (evidence that "will prompt the jury to decide the case on an improper basis" is unfairly prejudicial).

¶26 Here, as noted by the Municipal Court, Officer Lloyd had already testified that McCarthy was in immediate need of medical care as a result of his struggle with the arresting officers. Lloyd testified that McCarthy was taken to the emergency room for x-rays and treated for a collapsed lung among other injuries. Two of the officers' body camera video/audio recordings captured the struggle with McCarthy on the ground, revealing at least two officers repeatedly punching, kneeing, and kicking him in the side, his verbal wailing and other expressions of pain, his resulting inability to stand and walk without assistance, and his repeated post-custody exclamations or questions as to why or how the officers "kicked the shit out of [him]." Though the physician could have testified that McCarthy's injuries were consistent with being repeatedly punched and kicked, the proffered testimony was limited to the nature and extent of McCarthy's injuries as observed the next day and could not account for the circumstances under which the injuries occurred or how they in fact affected his intent or ability to obstruct and resist as alleged by the State. The proffered physician testimony in any event had no bearing on McCarthy's mental state or physical ability to obstruct or resist prior to the fact of the alleged obstruction and resistance that precipitated the officers' ensuing use of force.

¶27 Pursuant to §§ 45-7-301(2) and -302(2), MCA (legality of an arrest no defense to obstructing or resisting arrest), and M. R. Evid. 402, the injuries sustained by McCarthy after his alleged refusal to comply with officer commands and his pre-injury physical resistance to the officers' initial use of force are not probative of whether he obstructed or resisted prior to that resulting use of force and injury. There is no evidence or assertion that McCarthy was injured prior to his alleged failure to comply and submit to arrest. Under these circumstances, the primary, if not exclusive, purpose and effect of additional evidence regarding the nature and extent of his injuries would have been to create sympathy for McCarthy, and prejudice against the officers regarding the amount of force used, thus inviting the jury to decide his guilt or innocence on that basis rather than the sufficiency of the State's proof on the elements of the charged offenses. Given these circumstances, we cannot say that the Municipal Court abused its discretion under M. R. Evid. 403. We hold that the Municipal Court did not erroneously exclude McCarthy's proffered physician testimony regarding the nature and extent of the injuries he sustained incident to arrest.

¶28 3. Whether sufficient evidence existed to sustain McCarthy's conviction for obstructing a peace officer as defined by § 45-7-302, MCA ?

¶29 McCarthy asserts that insufficient evidence existed to convict him of obstructing a peace officer because, at the time he was attempting to apprehend McCarthy, Officer Lloyd was not yet engaged in an investigation and McCarthy thus could not have "knowingly obstruct[ed], impair[ed], or hinder[ed] the enforcement of the criminal law" as referenced in § 45-7-302(1), MCA. Citing Missoula v. Asbury , 265 Mont. 14, 20, 873 P.2d 936, 939 (1994), the State asserts that McCarthy waived this issue by failing to raise it on intermediate appeal to the District Court. McCarthy asserts that the issue is properly before this Court pursuant to State v. Akers , 2017 MT 311, 389 Mont. 531, 408 P.3d 142.

¶30 In Asbury , following an unsuccessful intermediate appeal to district court, multiple protesters, who had blocked the doors of a Missoula abortion clinic and otherwise interfered with persons desiring to utilize the clinic, ultimately appealed their various municipal court convictions to this Court. Asbury , 265 Mont. at 16, 873 P.2d at 937. Though various defendants raised an international law/treaty defense in municipal court in support of their motions to dismiss, we held that they failed to preserve and thus waived the issue for ultimate appeal to this Court by failing to raise it on intermediate appeal. Asbury , 265 Mont. at 19-20, 873 P.2d at 939.

¶31 In Akers , on appeal of an unsuccessful intermediate appeal to district court on other grounds, a defendant convicted of misdemeanor assault further asserted for the first time on appeal here that the justice court erroneously failed to properly instruct the jury on the affirmative defense of justifiable use of force. Akers , ¶¶ 2-8. Noting that, unlike in Asbury , the defendant had not previously raised the issue in any court, we recognized that he waived appellate review by this Court under the general rule of Asbury . See Akers , ¶¶ 19-20. However, distinguishing Asbury as a mere application of the general rule without consideration of the plain error exception, we rejected the State's waiver argument, holding that despite the defendant's failure to raise the issue in both courts below, the issue was still subject to plain error review on ultimate appeal to this Court. Akers , ¶ 20. Finding error, we exercised plain error review and reversed. Akers , ¶ 20-21.

¶32 Reaffirming Asbury synthesized with Akers , the failure to raise an appealable issue, whether preserved in the trial court or not, on intermediate appeal from a lower court of record generally constitutes an implied waiver of the issue for ultimate appeal to this Court. See Akers , ¶ 20 ; Asbury , 265 Mont. at 19-20, 873 P.2d at 939. As a narrow exception to this general rule, waiver by failure to raise an issue in the lower court or on intermediate appeal does not preclude plain error review on ultimate appeal here. Akers , ¶ 20. However, plain error review is in any event available only in our discretion under extraordinary circumstances where: (1) a constitutional or other substantial right is at issue; (2) the error is plain (i.e., obvious), and (3) we are "firmly convinced" that failure to review the issue will compromise the fundamental fairness or integrity of the proceeding, thereby resulting in a "manifest miscarriage of justice...." In re H.T. , 2015 MT 41, ¶ 14, 378 Mont. 206, 343 P.3d 159 (internal punctuation and citation omitted); State v. Earl , 2003 MT 158, ¶ 25, 316 Mont. 263, 71 P.3d 1201. We will employ the plain error doctrine only "sparingly, on a case-by-case basis," and will not use or allow it to become "a prophylactic for careless counsel." Earl , ¶ 25 (internal punctuation and citation omitted). While we may exercise plain error review sua sponte in extraordinary cases, the appellant generally has the burden of clearly demonstrating the appropriateness of plain error review. See Akers , ¶ 20.

¶33 Here, under the general rule of Asbury , McCarthy implicitly waived his sufficiency of the evidence challenge by failing to raise it on intermediate appeal. The issue is therefore subject to review on direct appeal only as plain error, in our discretion. In that regard, substantial record evidence manifests that Officer Lloyd was immediately pursuing and then attempting to apprehend McCarthy in response to a 911 report of criminal activity and Kelsey's subsequent on-scene alert and identification of him as a suspect in that activity. Lloyd testified that after identifying himself as a police officer, he commanded McCarthy to place his hands in the air and that he did not immediately comply. The sufficiency of the trial evidence to support a conviction is presumed on appeal. See State v. Gomez , 2007 MT 111, ¶ 33, 337 Mont. 219, 158 P.3d 442 ; State v. Wong Sun , 114 Mont. 185, 193, 133 P.2d 761, 764 (1943). McCarthy has failed to demonstrate and we find no compelling basis upon which to exercise plain error review in this case. Accordingly, we decline to review the sufficiency of the evidence for plain error.

CONCLUSION

¶34 We hold that the Municipal Court correctly denied McCarthy's request for discovery of the arresting officers' pre-incident personnel records. We hold that the Municipal Court did not erroneously exclude McCarthy's proffered physician testimony regarding the nature and extent of the injuries he sustained incident to arrest. We decline to review the sufficiency of the evidence for plain error.

¶35 Affirmed.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

JIM RICE, J.

      The State euphemistically refers to the officers' punching and kneeing as the administration of "distraction strikes."

      See Brady v. Maryland , 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) and Giglio v. United States , 405 U.S. 150, 154-55, 92 S. Ct. 763, 766, 31 L.Ed.2d 104 (1972).

      See also Danforth v. Minnesota , 552 U.S. 264, 269-70, 128 S. Ct. 1029, 1034-35, 169 L.Ed.2d 859 (2008) (internal citation omitted) (discussing due process right to fair trial derived from "minimum standards of fairness ... implicit in the concept of ordered liberty" within the framework of the protective rights provided by the U.S. Constitution).

      While we have yet to squarely address whether an accused's due process and confrontation rights under Montana Constitution Article II, Sections 17 and 24 are coextensive with those afforded under the Fourteenth Amendment, our prior decisions are seemingly in substantial accord with federal due process standards. See State v. Duffy , 2000 MT 186, ¶¶ 19-21, 300 Mont. 381, 6 P.3d 453 (in camera inspection adequately balances defendant's due process and confrontation rights with third-party privacy interests); State v. Donnelly , 244 Mont. 371, 375-77, 798 P.2d 89, 91-93 (1990) (in camera inspection adequately balances defendant's due process and confrontation rights with third-party privacy interests), overruled on other grounds by State v. Imlay , 249 Mont. 82, 89-91, 813 P.2d 979, 984-85 (1991) ; State v. Reynolds , 243 Mont. 1, 8, 792 P.2d 1111, 1115 (1990) (no due process right to discover third-party psychological records). Compare § 46-15-322(1)(e), MCA (similar but distinct statutory duty to "make available" upon request "all material or information that tends to mitigate or negate the defendant's guilt as to the offense charged or that would tend to reduce the defendant's potential sentence").

      We thus need not address McCarthy's side argument that Brady / Giglio require the prosecutor, not the involved law enforcement agency, to determine whether information or material known to law enforcement is exculpatory or otherwise constitutionally material.

      The defendants were convicted of misdemeanor criminal trespass, "criminal contempt," and "failure of disorderly persons to disperse." Asbury , 265 Mont. at 16, 873 P.2d at 937.


author: By the Court, PICKERING, J.:

text:
    Ian Andre HAGER, Appellant, v. The STATE of Nevada, Respondent.
    No. 72613
    Supreme Court of Nevada.
    FILED AUGUST 29, 2019
    John L. Arrascada, Public Defender, and John Reese Petty, Chief Deputy Public Defender, Washoe County, for Appellant.
    Aaron D. Ford, Attorney General, Carson City; Christopher J. Hicks, District Attorney, Terrence P. McCarthy, Chief Appellate Deputy District Attorney, and Joseph R. Plater, Appellate Deputy District Attorney, Washoe County, for Respondent.
    BEFORE GIBBONS, C.J., PICKERING and HARDESTY, JJ.
   By the Court, PICKERING, J.:

NRS 202.360 (2015) makes it a felony for certain categories of prohibited person to possess a firearm. A jury convicted Ian Hager of six counts of violating this statute. Counts one through three charged Hager with violating NRS 202.360(2)(a) by virtue of him possessing specified firearms as a person who has "been adjudicated as mentally ill ... by a court of this State, any other state or the United States." Counts four through six charged Hager with illegally possessing the same firearms based on his status as a person who is "an unlawful user of, or addicted to, any controlled substance." NRS 202.360(1)(d).

This appeal presents questions as to both categories of prohibited person. First, is a defendant who is assigned to and successfully completes a mental health specialty court diversion program under NRS 176A.250 through NRS 176A.265 (2013) thereby "adjudicated as mentally ill," making it illegal for him to possess a firearm under NRS 202.360(2)(a) ? Second, was it harmless error to instruct the jury in a way that theoretically allowed Hager to be convicted of illegal possession of a firearm by an "unlawful user" of a controlled substance under NRS 202.360(1)(d) based on a single current use of the substance?

We hold that Hager's assignment to and successful completion of a Nevada mental health court diversion program did not constitute an adjudication of mental illness that made his subsequent possession of a firearm a felony under NRS 202.360(2)(a). We further hold that, under NRS 202.360(1)(d), the jury should have been instructed that an "unlawful user" of a controlled substance is someone who regularly uses the substance, in a manner not medically prescribed, over a period of time proximate to or contemporaneous with possession of a firearm. Based on these holdings, we reverse the judgment of conviction as to counts one through three, and reverse and remand for a new trial before a correctly instructed jury as to counts four through six.

I.

In February 2013, Hager was arrested for outstanding warrants after being stopped for speeding on 1-80 in Humboldt County. When they arrested Hager, the police found and confiscated two firearms. The Humboldt County district attorney charged Hager with illegally carrying a concealed weapon and another offense. After negotiations, Hager pleaded guilty to carrying a concealed weapon. In exchange for Hager's plea, the criminal case was suspended, the remaining charge was dismissed, and Hager was referred by Humboldt County to the mental health specialty court program that Washoe County established under NRS 176A.250 through NRS 176A.265.

A licensed mental health professional diagnosed Hager with post-traumatic stress disorder (PTSD) associated with traumatic family events. Hager's PTSD diagnosis, together with the fact he was neither charged with nor previously convicted of a felony involving violence or the threat of violence, made him eligible for Washoe County's mental health court diversion program. As part of the intake process, a presentence investigator interviewed Hager. Then 28 years old, Hager admitted in the interview that he had been addicted to methamphetamine between the ages of 12 and 19 but stated that, with the exception of a one-time use of methamphetamine in January 2013, he no longer used drugs.

After evaluation, and with Hager's consent, Washoe County assigned him to its mental health court diversion program. Among other conditions, the program required random drug and alcohol tests. As a result of his assignment, no judgment of conviction was entered on Hager's guilty plea in Humboldt County. In May 2014, Washoe County discharged Hager from its program based on his having successfully completed it, and Humboldt County dismissed its criminal case against him. Hager's "[d]ischarge and dismissal restore[d him], in the contemplation of the law, to the status occupied before the arrest, indictment or information," NRS 176A.260(4), and Hager's records were sealed, NRS 176A.265. After his discharge and dismissal, Hager filled out paperwork asking the State to return his confiscated firearms, which the State did in August 2015.

In 2015, police responded twice to disturbances at Hager's residence, and both times confiscated firearms. Later, Hager again contacted the police about returning his firearms. After completing the necessary paperwork and background check, the police again returned Hager's firearms to him, this time in January 2016.

A month later, in February 2016, Hager contacted a detective to discuss the police department's investigation into Hager's brother's death in 2012. Hager believed his brother had been murdered but the investigation concluded that Hager's brother's death resulted from an accidental methamphetamine overdose, not foul play. Hager asked the detective to reopen the investigation. After looking into the case, the detective told Hager he found nothing to support reopening it. This infuriated Hager, and he sent the detective a link to a video he created and posted on Facebook. The record on appeal does not include the video but the trial transcript indicates that it shows Hager railing against the police for incompetence in attributing his brother's death to an accidental overdose, with Hager snorting a white substance from a baggy to dramatize how much methamphetamine a person can consume without overdosing. The video reportedly shows Hager with firearms beside him.

This and other social media posts Hager made led police to take Hager into custody for illegal possession of firearms. Hager consented to a search of his car, which did not turn up guns or drugs. Police then executed a search warrant at Hager's home and found the firearms underlying the charges in this case. They also found a glass pipe, and empty baggies commonly used to hold drugs, but no controlled substances or trace evidence of them. In the police interview that followed his arrest, Hager admitted possessing the firearms found in his home and that the substance he snorted in the Facebook video was meth-a statement Hager later denied at trial, where he testified the substance was salt.

Hager was charged with three counts of possession of a firearm after having been adjudicated mentally ill and three counts of possession of a firearm while being an unlawful user of, or addicted to, a controlled substance. A jury convicted Hager on all counts, and he appeals.

II.

Similar to its federal counterpart, illegal firearm possession under NRS 202.360 has three main elements: (1) a status element (the defendant falls within one of the categories of person the statute prohibits from possessing a firearm); (2) a possession element ("[a] person shall n o t ... have in his or her possession"); and (3) a firearms element ("any firearm"). See Rehaif v. United States, 588 U.S. ----, ----, 139 S.Ct. 2191, 2195-96, 204 L.Ed.2d 594 (2019) (stating the status, possession, and firearms elements of the federal firearms statute, 18 U.S.C. § 922(g) (2012) ). Hager admits the possession and firearms elements of the charges against him. His appeal centers on whether the State satisfied the status elements of the two groups of crimes he stands convicted of.

A.

1.

Counts one through three charged Hager with violating NRS 202.360(2)(a). The status element in that section is that of a person who "[h]as been adjudicated as mentally ill ... by a court." Reprinted in full for context, NRS 202.360(2) provides:

A person shall not own or have in his or her possession or under his or her custody or control any firearm if the person :
(a) Has been adjudicated as mentally ill or has been committed to any mental health facility by a court of this State, any other state or the United States ;
(b) Has entered a plea of guilty but mentally ill in a court of this State, any other state or the United States;
(c) Has been found guilty but mentally ill in a court of this State, any other state or the United States;
(d) Has been acquitted by reason of insanity in a court of this State, any other state or the United States; or
(e) Is illegally or unlawfully in the United States.
?A person who violates the provisions of this subsection is guilty of a category D felony and shall be punished as provided in NRS 193.130.

(emphasis added). At trial, the State maintained that Hager had been adjudicated mentally ill in 2013 by virtue of his assignment to Washoe County's mental health court diversion program.

After the State rested its case, Hager orally moved to dismiss counts one through three. His motion challenged whether assignment to and successful completion of a mental health court diversion program constitutes a sufficient adjudication of mental illness for NRS 202.260(2)(a) to apply. The district court denied the motion, crediting the State's position that this was a question of fact for the jury to decide. But the issue is legal, not factual-requiring us to interpret NRS 202.360(2)(a) and the mental health specialty court procedures and statutes, NRS 176A.250 -.265, to determine what assignment to a mental health court diversion program entails and if it qualifies as an adjudication of mental illness for purposes of NRS 202.360(2)(a). Courts interpreting 18 U.S.C. § 922(g)(4), the federal analog to NRS 202.360(2), have uniformly held "that whether a defendant has been adjudicated a mental defective [in a prior state court proceeding] for the purposes of § 922(g)(4) is a question of law to be determined by the court rather than a question of fact to be reserved for the jury." United States v. McLinn, 896 F.3d 1152, 1156 (10th Cir. 2018) (noting that "every court of appeals to have addressed the issue has [so] held") (citing cases); see United States v. Rehlander, 666 F.3d 45, 47, 50 (1st Cir. 2012). Since the issue is legal, our review of Hager's challenge to the judgment of conviction on counts one through three is de novo, not deferential.

2.

NRS 202.360(2)(a) does not define the phrase "adjudicated as mentally ill." The State cites the Black's Law Dictionary (10th ed. 2014) definition of "adjudicate-to rule on judicially" and equates assignment to a mental health court diversion program with an adjudication of mental illness. Hager counters with definitions of "adjudicate" that imply an adversary proceeding followed by a formal judicial decision, embodied in a final judgment. See Bryan A. Garner, Garner's Dictionary of Legal Usage 26 (3d ed. 2011) ("Adjudication = (1) the process of judging; (2) a court's pronouncement of a judgment or decree; or (3) the judgment so given."); The American Heritage Dictionary of the English Language 21 (5th ed. 2011) ("Adjudicate = 1. To make a decision in a legal case or proceeding: a judge adjudicating on land claims .").

Both interpretations are plausible. In District of Columbia v. Heller, 554 U.S. 570, 595, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), the Supreme Court held that the Second Amendment right to bear arms is a personal right not tethered to any militia. See McDonald v. City of Chi., Ill. , 561 U.S. 742, 750, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (holding that the Second Amendment "right is fully applicable to the States"). Though the Heller opinion states that nothing in it "should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill," 554 U.S. at 626, 128 S.Ct. 2783, post- Heller decisions recognize that "the right to possess arms (among those not properly disqualified) is no longer something that can be withdrawn by government on a permanent and irrevocable basis without due process," Rehlander, 666 F.3d at 48 ; see United States v. McMichael , 350 F. Supp. 3d 647, 659 (W.D. Mich. 2018). The loss of gun rights that follows a person's adjudication as mentally ill (or "a mental defective" under 18 U.S.C. § 922(g)(4) ) or commitment to a mental institution is immediate and, in many instances, effectively permanent. Beers v. Att'y Gen. U.S. , 927 F.3d 150, 158-59 (3rd Cir. 2019). In deciding whether an emergency hospitalization, temporary commitment order, or other summary proceeding qualifies as a sufficient adjudication of mental illness or commitment to make it illegal for an individual thereafter to possess a firearm, "an adjudicatory hearing, including a right to offer and test evidence if facts are in dispute, is required." Rehlander, 666 F.3d at 48.

Given this context, we conclude that, as used in NRS 202.360(2)(a), "[t]he plain meaning of 'adjudicated' connotes the involvement of a judicial decision-maker, the resolution of a dispute after consideration of argument by the parties involved, and a deliberative proceeding with some form of due process." Franklin v. Sessions, 291 F. Supp. 3d 705, 715 (W.D. Pa. 2017) (construing the phrase "adjudicated as a mental defective" in 18 U.S.C. 922(g)(4) ).

3.

By this measure, assignment to and successful completion of the mental health court diversion program Washoe County established pursuant to NRS 176A.250 "for the treatment of mental illness or intellectual disabilities" does not constitute a sufficient adjudication of mental illness for NRS 202.360(2)(a) to apply. To be sure, mental health court is supervised by a judge, who has the discretion to assign or refuse to assign a defendant to the program. See NRS 176A.250 (the mental health specialty court "may assign a defendant" to its diversion program) (emphasis added); NRS 176A.260(1) (similar). But participation in the program is voluntary; a defendant may not be diverted to mental health court absent consent. NRS 176A.260(1).

A defendant is eligible for diversion to mental health court if he or she "appears to suffer from mental illness or to be intellectually disabled." NRS 176A.255(2)(b) (emphasis added). This standard encompasses conditions-intellectual disability and types of mental illness that do not make a person a danger to him or herself or to others-that may not justify gun dispossession. And the standard is met, not by an adversarial hearing at the conclusion of which the judge finds the defendant is in fact mentally ill (or intellectually disabled), but by the submission to the mental health court team of a qualifying diagnosis by a licensed mental health professional, from which it can be said that the defendant "appears to suffer from mental illness or to be intellectually disabled." Id. ; see Second Jud. Dist. Ct., Policy and Procedure-Specialty Courts 4, at 2 (eff. July 26, 2016). Unlike a commitment order, which requires a judge to find by clear and convincing evidence that the person is a danger to him or herself or to others, see NRS 433A.310(1)(b) (2017)-an adjudication that disarms the person under NRS 202.360(2)(a) -under the specialty court statutes as written at the time relevant to this appeal, a defendant was not eligible for diversion to mental health court if charged with a crime or convicted in the past of a felony involving violence or the threat of violence. Compare NRS 176A.260(2) (2013) ("If the offense committed by the defendant involved the use or threatened use of force or violence or if the defendant was previously convicted ... of a felony that involved the use or threatened use of force or violence, the court may not assign the defendant to the program [unless the prosecuting attorney stipulates to the assignment]"), with State v. Second Judicial Dist. Court (Hearn) , 134 Nev. ----, 432 P.3d 154, 160-61 (2018) (severing the bracketed language from NRS 176A.290(2) (2017), the then-analogous veteran's court statute, as an unconstitutional violation of the separation of powers doctrine). And as Hager's paperwork and the trial testimony established, Hager's assignment to Washoe County's mental health court was documented not by an order, decree, or findings signed by a judge, but rather by an "acceptance letter" signed by a specialty courts officer.

NRS 179A.163 and the mental health reporting statutes it collects support that the Legislature has not equated assignment to a mental health court diversion program under NRS 176A.260 with an adjudication of mental illness that makes later possession of a firearm a felony under NRS 202.360(2)(a). State and federal firearms statutes emphasize prevention-keeping firearms out of the hands of those whose possession of them is illegal under 18 U.S.C. § 922(g) and state statutes like NRS 202.360. To that end, when a mental illness adjudication that disqualifies a person from thereafter possessing a firearm occurs in Nevada, the court that enters the adjudication is required, within 5 days, to transmit the record reporting the finding to the Central Repository for Nevada Records of Criminal History, "along with a statement indicating that the record is being transmitted for inclusion in each appropriate database of the National Instant Criminal Background Check System." NRS 159.0593(1) (requiring reporting of the appointment of a guardian for a protected person who has been found, by clear and convincing evidence, to be "a person with a mental defect who is prohibited from possessing a firearm"); see NRS 174.035(9) (same, for a defendant from whom a court accepts a plea of guilty but mentally ill); NRS 175.533(3) (same, for a defendant who is found guilty but mentally ill); NRS 175.539(4) (same, for a defendant who is acquitted by reason of insanity); NRS 178.425(6) (same, for a defendant who is found incompetent to stand trial); NRS 433A.310(7) (same, for a person who is involuntarily committed to a mental health facility). On "receiving a record transmitted pursuant to NRS 159.0593, 174.035, 175.533, 175.539, 178.425, or 433A.310, the [Nevada] Central Repository ... [s]hall take reasonable steps to ensure that the information reported in the record is included in each appropriate database of the National Instant Criminal Background Check System." NRS 179A.163(1). "Mandated by the Brady Handgun Violence Prevention Act of 1993," the National Instant Criminal Background Check System or "NICS is used by Federal Firearms Licensees (FFLs) to instantly determine whether a prospective buyer is eligible to buy firearms. Before ringing up the sale, cashiers call in a check to the FBI or other designated agencies to ensure that each customer does not have a criminal record or isn't otherwise ineligible to make a purchase." Federal Bureau of Investigation, National Instant Criminal Background Check System (NICS), https://www.fbi.gov/services/cjis/nics (last visited 8/5/2019).

Notably, Nevada's mental health court diversion program statutes, NRS 176A.250 through NRS 176A.265, do not include a Central Repository reporting requirement. (In fact, NRS 176A.265(1) provides for the records to be sealed upon successful completion of the program.) Surely, if the Nevada Legislature equated assignment to a mental health court diversion program under NRS 176A.260 with an adjudication of mental illness for purposes of NRS 202.360(2)(a), it would have included in NRS 176A.250 through NRS 176A.265 a mandatory Central Repository report obligation like that imposed by NRS 159.0593, 174.035, 175.533, 175.539, 178.425, or 433A.310. It also would not have omitted NRS 176A.260 from the list of adjudications of mental illness that NRS 179A.163(1) requires the Central Repository to see added to all appropriate National Instant Criminal Background Check System databases.

4.

Even accepting the State's argument that assignment to mental health court constitutes an adjudication of mental illness that triggers application of NRS 202.360(2)(a), a defendant who successfully completes such a program is restored to the status he or she occupied before the assignment. NRS 176A.250 -.265 create a diversion program: Upon the defendant's assignment, the court "without entering a judgment of conviction[,] ... suspend[s] further proceedings and place[s] the defendant on probation upon terms and conditions that must include attendance and successful completion of [the] program." NRS 176A.260(1). If the defendant violates a term or condition, the "court may enter a judgment of conviction and proceed as provided in the section pursuant to which the defendant was charged," NRS 176A.260(3)(a) -whereupon, if the crime charged was a felony, the defendant is disarmed by virtue of his status as a convicted felon under NRS 202.360(1)(a). But if the defendant fulfills the terms and conditions imposed, "the court shall discharge the defendant and dismiss the proceedings." NRS 176A.260(4). The statute continues:

Discharge and dismissal pursuant to this section is without adjudication of guilt and is not a conviction for purposes of this section or for purposes of employment, civil rights or any statute or regulation or license or questionnaire or for any other public or private purpose, but is a conviction for the purpose of additional penalties imposed for second or subsequent convictions or the setting of bail. Discharge and dismissal restores the defendant, in the contemplation of the law, to the status occupied before the arrest, indictment or information .

(emphasis added).

Hager successfully completed Washoe County's mental health court diversion program in 2014. The "[d]ischarge and dismissal" that resulted "restore[d Hager], in the contemplation of the law, to the status [he] occupied before [his] arrest, indictment or information" in Humboldt County in 2013. Id. In 2013, Hager did not occupy the status of a person who has "been adjudicated as mentally ill" for purposes of firearm dispossession under NRS 202.360(2)(a). The State charged Hager with illegally possessing firearms between November 2015 and April 2016. By then, his discharge and dismissal from the mental health court diversion program had "restore[d]" him to the pre-assignment status he occupied in 2013. NRS 176A.260(4). Confirming this, the State returned the firearms it confiscated from Hager in 2013 to him in 2015.

The State presses us to accept that NRS 202.360(2)(a) 's use of the phrase "has been adjudicated as mentally ill" signifies a permanent prohibition and that being disarmed as a result of assignment to a mental health court diversion program is a species of "additional penalt[y]," NRS 176A.260(4), that survives dismissal and discharge from the program. But that reading of NRS 202.360(2)(a) cannot be squared with NRS 176A.260(4) 's declaration that discharge and dismissal restores a defendant to his or her pre-assignment status. Cf. Lewis v. United States, 445 U.S. 55, 61 n.5, 100 S.Ct. 915, 63 L.Ed.2d 198 (1980) (rejecting the proposition that a person "who has been convicted" of a felony and thus disarmed by the predecessor statute to 18 U.S.C. § 922(g)(1) retains that status and cannot thereafter legally possess a firearm even if the conviction is later vacated and the felony charge dismissed). The State cannot constitutionally hold "an individual criminally responsible for conduct which he could not reasonably understand to be proscribed." Gallegos v. State , 123 Nev. 289, 293, 163 P.3d 456, 458 (2007) (internal quotation marks omitted). By its plain terms, NRS 176A.260(4) restored Hager to his pre-2013 arrest status after he successfully completed Washoe County's mental health court program, a reading the State itself confirmed by returning his firearms to him in 2015. Hager's judgment of conviction on counts one through three fails as a matter of law.

B.

Hager also appeals his conviction on counts four through six, which charged him with illegal possession of firearms by a person who "is an unlawful user of, or addicted to, any controlled substance," a category B felony under NRS 202.360(1)(d). Hager challenges the sufficiency of the evidence to sustain his convictions on these counts and the adequacy of the jury instruction defining "unlawful user."

1.

A challenge to the sufficiency of the evidence asks "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Middleton v. State, 114 Nev. 1089, 1103, 968 P.2d 296, 306 (1998) (internal quotation marks omitted). As with counts one through three, Hager admits the possession and firearms elements of counts four through six but disputes the status element. Hager asserts that the State failed to provide sufficient evidence that he possessed firearms while being an unlawful user of, or addicted to, drugs because the police did not find any controlled substances in Hager's possession, only drug paraphernalia, which Hager claims he last used many years ago.

NRS 202.360(1)(d) 's prohibition against a person who "[i]s an unlawful user of, or addicted to, any controlled substance" possessing a firearm mirrors the similar prohibition in 18 U.S.C. § 922(g)(3). Neither statute defines "unlawful user" or "addicted to." The meaning of "addiction" is straightforward: "The habitual and intemperate use of a substance ... frequently and without the ability to stop on one's own." Addiction, Black's Law Dictionary (11th ed. 2019). The meaning of "unlawful user" is less clear, but prevailing federal caselaw holds that "unlawful user" is not the same thing as "addicted to," see United States v. Bennett , 329 F.3d 769, 776 (10th Cir. 2003), and that to sustain a conviction under § 922(g)(3) of illegally possessing a firearm by "an unlawful user of" a controlled substance, the government must prove "that the defendant took drugs with regularity, over an extended period of time, and contemporaneously with his purchase or possession of a firearm." United States v. Purdy , 264 F.3d 809, 813 (9th Cir. 2001) ; see United States v. Augustin, 376 F.3d 135, 138-39 (3rd Cir. 2004) ("Those of our sister courts of appeals that have considered 18 U.S.C. § 922(g)(3) have concluded, as do we, that one must be an unlawful user at or about the time he or she possessed the firearm and that to be an unlawful user, one needed to have engaged in regular use over a period of time proximate to or contemporaneous with the possession of the firearm.") (collecting cases). "The use of the present tense"-criminalizing firearm possession by a person "who is an unlawful user"-"was not idle." Augustin , 376 F.3d at 138 (internal quotation marks omitted); see United States v. Yancey, 621 F.3d 681, 687 (7th Cir. 2010) ("Every circuit to have considered the question has demanded that the habitual abuse be contemporaneous with the gun possession.").

Had the jury accepted Hager's testimony that he overcame his addiction to methamphetamine by the time he turned 20, that the substance in the Facebook video was salt, and that his last use of methamphetamine was a single use in 2013, it might have acquitted him. But the jury was not required to credit Hager's testimony. And judged by Middleton 's highly deferential standard-could "any rational trier of fact ... have found the essential elements of the crime beyond a reasonable doubt"?, 114 Nev. at 1103, 968 P.2d at 306 -sufficient evidence supports Hager's convictions on counts four through six. Regarding Hager's drug use, the State presented evidence that Hager was addicted to methamphetamine from 1997-2004, suffered a relapse in 2013, and also abused Oxycodone; that in the Facebook video Hager forwarded to the detective in 2016, Hager appears to ingest methamphetamine with firearms in the background; that in his interview with officers after his arrest for firearm possession, Hager admitted the substance in the video was meth; and that after searching Hager's house pursuant to his arrest, police found drug paraphernalia-a glass pipe and baggies. This evidence, although some of it circumstantial, is enough to show that Hager either maintained his prior addiction to methamphetamine or was using the drug regularly, proximate to, or contemporaneous with his firearm possession between December 2015 and April 2016. See Canape v. State, 109 Nev. 864, 869, 859 P.2d 1023, 1026 (1993) ("circumstantial evidence may constitute the sole basis for a conviction").

2.

Hager next challenges jury instruction 16, in which the district court stated the elements of the crime of possessing a firearm while an unlawful user of, or addicted to, a controlled substance. Over Hager's objection, the instruction defined "unlawful user" as "a person who uses any controlled substance." Hager asserts that this definition of "user" was too broad and erroneously permitted his conviction based on a single use proximate in time to the illegal firearms possession charge, an invalid theory for conviction under NRS 202.360(1)(d). Although a district court has "broad discretion to settle jury instructions[,] we review de novo whether a particular instruction, such as the one at issue in this case, comprises a correct statement of the law." Cortinas v. State, 124 Nev. 1013, 1019, 195 P.3d 315, 319 (2008).

We noted but did not resolve the question of whether a person can be convicted of being an unlawful user of a controlled substance in possession of a firearm under NRS 202.360(1)(d) based on a single use of a controlled substance in Byars v. State , 130 Nev. 848, 860, 336 P.3d 939, 947 (2014). Consistent with the federal caselaw just discussed, see § II.B.1, supra, we hold that "an unlawful user" of a controlled substance for purposes of NRS 202.360(1)(d) is a person who regularly uses the substance, in a manner not medically prescribed, over a period of time proximate to, or contemporaneous with, possession of a firearm. Under this caselaw, a single use of the drug is insufficient to establish a person as an "unlawful user." Augustin, 376 F.3d at 139. As stated in United States v . Burchard, 580 F.3d 341, 346 (6th Cir. 2009) :

A one time use of a controlled substance is not sufficient to be an unlawful user under the applicable statute. Rather, the [d]efendant must have been engaged in the regular use of a controlled substance either close in time to or contemporaneous with the period of time he possessed the firearm.

Jury instruction 16 failed to capture the concept of regular use, proximate in time to the illegal firearm possession charged. Though the State argues otherwise, instruction 17, which added that "an unlawful user may regain his right to possess a firearm simply by ending his drug use," does not clarify that conviction must rest on more than a single contemporaneous use.

Under Cortinas v. State , 124 Nev. at 1026-27, 195 P.3d at 324, we must determine "whether the instructional error in this case is harmless beyond a reasonable doubt." Consistent with NRS 202.360(1)(d), instruction 16 allowed the jury to convict Hager based on his status as either an "unlawful user" or a person "addicted to" a controlled substance. The jury returned a general verdict, without specifying the theory on which it convicted him. It is possible that the error in defining "unlawful user" did not affect the verdict, since the jury could have convicted Hager on the theory he had been and remained addicted to methamphetamine when the alleged unlawful firearm possession occurred. But the State's search of Hager's car and house turned up no direct evidence of possession of methamphetamine-only a glass pipe and baggies. And from the evidence of Hager's drug use presented at trial, the jury equally could have convicted Hager based on the video that depicted him snorting meth in the presence of firearms in 2016-a single use that qualified Hager as an "unlawful user" due to the objected-to error in instruction 16. Because doubt exists as to whether a correctly instructed jury would have convicted Hager, it is not clear beyond a reasonable doubt that the misstatement of law in the instruction was harmless.

For these reasons, we reverse Hager's convictions on counts one through three and reverse and remand for a new trial on counts four through six.

We concur:

Gibbons, C.J.

Hardesty, J.

      Hager participated in Washoe County's mental health specialty court program between 2013 and 2014 and allegedly committed his firearm-possession crimes between November 6, 2015, and April 8, 2016. Unless otherwise noted, references to statutes codified in NRS Chapters 176A and 202 are to the versions in effect at those times, not as later amended. See 2013 Nev. Stat., ch. 186, §§ 81-83, at 686-87 (amending the relevant portions of NRS Chapter 176A); 2015 Nev. Stat., ch. 329, § 15, at 1806-07 (amending NRS 202.360 ).

      Hager also filed a pretrial motion to dismiss that the district court denied as untimely.

      The 2019 Legislature amended NRS 176A.260 and NRS 176A.290(2) to eliminate the provisions excluding violent offenders from specialty court unless the prosecuting attorney stipulated and replaced it with separate provisions for mental health and veteran's specialty courts. See 2019 Nev. Stat., ch. 388, § 1 (amending NRS 176A.260(2) to provide that "[i]f the offense committed by the defendant is a category A felony or a sexual offense as defined in NRS 179D.097 that is punishable as a category B felony, the defendant is not eligible for assignment to the [mental health specialty court diversion] program."); 2019 Nev. Stat., ch. 388, § 3 (amending NRS 176A.290(2) ).